Delhi District Court
Sapna Talwar W/O Late Sh.Madan Lal ... vs Sh.Raj Singh @ Nasir Ali on 16 July, 2016
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
JUDGE, MACT-1 (CENTRAL), DELHI.
CASE-A
Suit No.307/11
Unique Case ID No.02401C-0674242007
1. Sapna Talwar W/o Late Sh.Madan Lal Talwar, (Wife)
2. Kamal Talwar S/o Late Sh.Madan Lal Talwar, (Son)
3. Sachin Talwar S/o Late Sh.Madan Lal Talwar, (Son)
All R/o
A-311, Pandav Nagar, New Delhi-08
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Date of filing of Claim Petition :13.07.2007
********************
CASE-B
Suit No.309/11
Unique Case ID No.02401C-0674242007
Smt.Pooja Talwar W/o Sh.Kamal Talawar,
R/o A-311, Pandav Nagar, New Delhi-08
........PETITIONER
Page No.1 of 313
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS
Date of filing of Claim Petition : 13.07.2007
********************
CASE-C
Suit No.308/11
Unique Case ID No.02401C-0674222007
Sh. Kamal Talwar, guardian/father of Ms. Riya Talwar,
R/o A-311, Pandav Nagar, New Delhi-08
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
Page No.2 of 313
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS
Date of filing of Claim Petition : 13.07.2007
********************
CASE-D
Suit No.21/16
Unique Case ID No.02401C-0027012016
1. Sh. Ajay Tiwari S/o Lt.Sh.Kameshwar Tiwari (Son)
2. Sh. Amit Tiwari S/o Late Sh.Kameshwar Tiwari (Son)
Both R/o A-311, Pandav Nagar, New Delhi-110 008
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
RESPONDENTS
Date of filing of Claim Petition : 05.07.2007
*************************
CASE-E
Suit No.305/11
Unique Case ID No.02401C-0674262007
Page No.3 of 313
1. Sh.Rajeev @ Rajeev Malhotra
S/o Sh.Mohinder Kumar (Husband)
2. Master Jai Malhotra S/o Sh.Rajeev Malhotra (Son)
(Petitioner No.2 through his natural guardian/father Sh.Rajeev)
Both R/o
311, Railway Colony, Patel Nagar, New Delhi
3. Smt. Sapna W/o Late Sh.Madan Lal
R/o 311, Railway Colony, Patel Nagar, New Delhi
(Mother)
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Date of filing of Claim Petition : 13.07.2007
********************
CASE-F
Suit No.306/11
Unique Case ID No.02401C-1059072008
Master Jai Malhotra
Through his guardian/father Shri Rajeev Malhotra
R/o A-2/65, Block-A, Pocket-2, Rohini, Sector-8,
New Delhi-110 088
Page No.4 of 313
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. M/s Pritpal Bus Service,
Through its Proprietor,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Date of filing of Claim Petition : 20.07.2007
********************
CASE-G
Suit No.310/11
Unique Case ID No.02401C-1059172008
1. Ms. Sunita Rao @ Jyoti Rao
D/o Sh. Rameshwar Rao
R/o BS-84A, Shalimar Bagh, DDA Flats,
Delhi-110 088
........PETITIONER
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 058 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Page No.5 of 313
Near Tilak Nagar, New Delhi-15 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS
Date of filing of Claim Petition : 20.07.2007
********************
CASE-H
Suit No.390/11
Unique Case ID No.02401C-1058872008
Smt. Anju Mahajan
W/o Shri Sanjeev Mahajan,
R/o H.No.C-68A, M.P. Enclave, Pritam Pura, Delhi
Also At:
B-569/A, Rishi Nagar Ext. Shakur Basti, Delhi-34
(Petition filed through her husband Sh.Sanjeev Mahajan)
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
Page No.6 of 313
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Date of filing of Claim Petition : 17.08.2007
********************
CASE-I
Suit No.279/11
Unique Case ID No.02401C-1465102008
1. Archana Rawal W/o Sh.Anil Rawal (Mother)
2. Anil Rawal S/o Late Sh.Tilak Raj (Father)
Both R/o
H.No.5/159, Subhash Nagar, Hari Nagar,
Delhi-110 018
..........PETITIONERS
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandella,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Page No.7 of 313
Date of filing of Claim Petition : 16.08.2007
********************
CASE-J
Suit No.325/11
Unique Case ID No.02401C-1465172008
1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Father)
2. Baby Diksha D/o Surinder Nijhawan, (Sister)
3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Brother)
All R/o H.No.122, 1st Floor, Tihar Village, Delhi
(Petitioner No.2 & 3 being minor through their natural
guardian/father Sh.Surinder Nijhawan)
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS
Date of filing of Claim Petition :16.08.2007
********************
CASE-K
Suit No.322/11
Unique Case ID No.02401C-1465112008
1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Husband)
Page No.8 of 313
2. Baby Diksha D/o Surinder Nijhawan, (Daughter)
3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Son)
All R/o H.No.11, 1st Floor, Tihar Village, Delhi
(Petitioner No.2 & 3 being minor through their natural
guardian/father Sh.Surinder Nijhawan)
........PETITIONERS
Versus
1. Sh.Raj Singh @ Nasir Ali
S/o Abdul Karim,
C/o M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)
2. Sh.Harvinder Singh, Proprietor of M/s Pritpal Bus Service,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
1& 7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-L
Suit No.324/11
Unique Case ID No.02401C-1465132008
Surinder Nijhawan S/o Late Sh.Krishan Lal,
R/o H.No.122, 1st Floor, Tihar Village, Delhi
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh. Sunder Chandelia,
Page No.9 of 313
At WZ-53, 80 Gaj, Harijan Colony.
Near Valmiki Mandir, Tilk Nagar,
PS Tilak Nagar, Delhi-18.
Also at C/o Harvinder Singh, S/o Sh.Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)
2. Sh.Harvinder Singh S/o Sh.Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-M
Suit No.323/11
Unique Case ID No.02401C-1465122008
Surinder Nijhawan, guardian/father of
Master Akshay
R/o H.No.122, 1st Floor, Tihar Village, Delhi
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh. Sunder Chandelia,
At WZ-53, 80 Gaj, Harijan Colony.
Near Valmiki Mandir, Tilk Nagar,
PS Tilak Nagar, Delhi-18.
Also at C/o Harvinder Singh, S/o Sh.Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-110 018 (Driver)
2. Sh.Harvinder Singh S/o Sh.Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Page No.10 of 313
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Through its Manager, Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-N
Suit No.280/11
Unique Case ID No.02401C-1465202008
Satish Kumar Nijhawan, guardian/father of
Baby Bhawna (minor)
R/o H.No.122, 1st Floor, Village Tihar, Delhi-18
..........PETITIONER
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandella,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Page No.11 of 313
Date of filing of Claim Petition : 16.08.2007
********************
CASE-O
Suit No.190/11
Unique Case ID No.02401C-0819832007
Amol Bajaj S/o Rajesh Bajaj,
R/o H.No. G-17A, Double Story Quarters,
West Patel Nagar, Delhi-110 008 ........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-P
Suit No.191/11
Unique Case ID No.02401C-0815992007
Smt. Bharti Bajaj W/o Rajesh Bajaj,
Page No.12 of 313
R/o H.No. G-17A, Double Story Quarters,
West Patel Nagar, Delhi-110 008 ........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...............RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-Q
Suit No.194/11
Unique Case ID No.02401C-0820642007
Sunny Ahuja @ Sahil Ahuja
S/o Sh.Suraj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
(Petitioner being minor through his natural guardian/next
friend/father Sh.Suraj Ahuja)
........PETITIONER
Page No.13 of 313
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition :16.08.2007
********************
CASE-R
Suit No.196/11
Unique Case ID No.02401C-0820012007
Saroj Ahuja W/o Sh.Suraj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Page No.14 of 313
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
CASE-S
Suit No.195/11
Unique Case ID No.02401C-0820982007
1. Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)
2. Smt. Monika Khurana W/o Sh.Naveen Khurana (Daughter)
Both R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONERS
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
Page No.15 of 313
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
******************
CASE-T
Suit No.193/11
Unique Case ID No.02401C-1465092008
1. Smt.Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)
2. Smt.Monika Khurana W/o Sh.Naveen Khurana (Daughter)
Both R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONERS
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
Page No.16 of 313
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Date of filing of Claim Petition :16.08.2007
********************
CASE-U
Suit No.192/11
Unique Case ID No.02401C-0820722007
Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja
R/o H.No. G-24, Double Story Quarters,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
...........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
Page No.17 of 313
CASE-V
Suit No.657/11
Unique Case ID No.02401C-0886142007
1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati
R/o H.No.T-192, Baljeet Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
..........RESPONDENTS
Date of filing of Claim Petition : 01.09.2007
********************
CASE-W
Suit No.658/11
Unique Case ID No.02401C-0885982007
1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati (Wife)
2. Smt. Pushpa Gulati W/o Sh.Rammurti Gulati (Mother)
3. Sh.Rammurti Gulati S/o Late Sh.Diwan Chand (Father)
4. Jyoti Gulat D/o Sh.Rammurti Gulati (Sister)
Page No.18 of 313
All R/o H.No.T-192, Baljeet Nagar, Delhi-110 008
........PETITIONERS
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
RESPONDENTS
Date of filing of Claim Petition :01.09.2007
********************
CASE-X
Suit No.326/11
Unique Case ID No.02401C-0816062007
Raghav Ram S/o Late Sh. Bhikari Ram (Brother)
.......PETITIONER
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Page No.19 of 313
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
.........RESPONDENTS
1.
Date of filing of Claim Petition : 16.08.2007
********************
CASE-Y
Suit No.456/11
Unique Case ID No.02401C-0886212007
Atul Kumar Sharma S/o Late Sh.Jagdish Kumar Sharma
West Patel Nagar, Delhi-18
..........PETITIONER
Versus
1. Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
Page No.20 of 313
New Delhi -110 005 (Insurer)
.........RESPONDENTS
Date of filing of Claim Petition : 01.09.2007
********************
CASE-Z
Suit No.457/11
Unique Case ID No.02401C-1465162008
Sanjay Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Rakesh Kumar Jain S/o Late Sh.Deep Chan Jain (Brother)
Both R/o
H.No.11/392, Sunder Vihar,
Paschim Vihar, Delhi-110 087
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition : 16.08.2007
********************
Page No.21 of 313
CASE-Z1
Suit No.259/11
Unique Case ID No.02401C-0886502007
Sh. Hari Om Mahna S/o Sh. Shadi Lal Mahna
R/o H.No. 29/56, 1st Floor,
West Patel Nagar, Delhi-110 008
........PETITIONER
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition :01.09.2007
********************
CASE-Z2
Suit No.257/11
Unique Case ID No.02401C-0886322007
Baby Aastha Mahna D/o Sh. Hari Om Mahna,
R/o H.No. 29/56, 1st Floor,
West Patel Nagar, Delhi-110 008
........PETITIONER
Page No.22 of 313
Versus
1. Sh.Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandelia,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh. Pritpal Singh,
Office-6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Sh. Pritpal Singh,
6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Office- Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh,
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition : 01.09.2007
********************
CASE-Z3
Suit No.260/11
Unique Case ID No.02401C-088432007
Shalu Mahna W/o Sh.Hari Om Mahna
R/o H.No.29/56, 1st Floor, West Patel Nagar,
Delhi-18 ........PETITIONER
Versus
1.Sh. Nasir Ali @ Raj Singh
S/o Abdul Karim,
R/o C/o Sh.Sunder Chandella,
WZ-53, 80 Gaj, Harijan Colony,
Near Valmiki Mandir, Tilak Nagar,
Page No.23 of 313
PS Tilak Nagar, Delhi-18
Also at:
C/o Harvinder Singh S/o Sh.Pritpal Singh,
Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Driver)
2. Sh.Harvinder Singh S/o Pritpal Singh
R Office 6/1, Prem Nagar, Main Najafgarh Road,
Near Tilak Nagar, New Delhi-18 (Owner)
3. The New India Assurance Company Ltd.
Keltron Chambers, 1st Floor,
18/7-8, Arya Samaj Road, Karol Bagh
New Delhi -110 005 (Insurer)
........RESPONDENTS
Date of filing of Claim Petition :01.09.2007
********************
JUDGMENT
1. Vide this award, I shall dispose of twenty nine separate claim petitions arising out of accident of bus no. DL 1PC 7676 on 20.06.2007 about 11:00PM which was carrying passengers on a pilgrimage tour from Delhi. The accident was caused as the bus proceeded to Katra (Mata Vaishno Devi Shrine) from Dharamshala (Kangra), HP and fell in a valley at Kantchi More as the driver lost control of the bus. The bus is alleged to have been driven by Respondent No.1 at a high speed and in a rash and negligent manner in the hilly area despite being warned by the passengers. Consequently, several passengers suffered grievous injuries and 13 innocent lives were lost while the driver of the bus jumped out out of the bus to save Page No.24 of 313 himself. FIR No.125/07 U/s 279/337/304A IPC was registered at PS: Dharamsala, District Kangra regarding the accident.
2. In the joint Written Statement filed on behalf of Respondent No.1 & 2 (i.e. driver and owner of the offending vehicle) in the respective cases, it was submitted that the case had been fabricated in collusion with the police and no accident had occurred by the vehicle of the answering respondents. It was denied that some of the victims were travelling along with other passengers in bus no.DL 1 PC 7676 for pilgrimage on 20.06.2007 or that the bus was involved in the accident. The amount claimed in the respective claim petitions was further stated to be exorbitant & excessive and other averments in the claim petitions on the point of compensation were denied.
In the Written Statements filed on behalf of Respondent No.3 The New India Assurance Company Ltd., in the respective suits, the claim was stated to be excessive and exorbitant. It was further submitted that if the driver of the offending vehicle was not having valid and effective driving licence or was otherwise disqualified for obtaining the same, the insurance company shall not be liable. The petitions were stated to be bad for non-joinder of actual driver who was driving the vehicle at the time of accident. It was also submitted that the insured had willfully committed the breach of terms of policy by carrying more passengers than the permitted carrying capacity which contributed in the occurrence of the accident. However, it was admitted that vehicle No.DL 1 PC 7676 was insured with Page No.25 of 313 the respondent Insurance Company for the period 20.11.2006 to 19.11.2007. It was denied with reference to the respective petitions that the petitioners were travelling in the bus or the accident took place as alleged.
In the amended Written Statement filed on behalf of insurance company it was further submitted that as per the investigation by the Insurance Company and on the basis of police record, it was found that no licence bearing no.407/AG/05 was issued by Agra Road Transport Authority in favour of Nasir Ali (driver of offending bus) covering the date of accident. Further as per the record of RTO, Agra the licence was issued in the name of Ravi Kumar Aggarwal and as such the respondent/insured committed the breach of terms of policy by employing driver, who was not having an effective and valid driving licence.
3. At this stage itself reference may be made to order dated 27.09.2010 whereby following observations were made by Ld. Predecessor regarding recording of evidence.
"27.09.10 ....................................... Relating to the same incident, there are 28 separate petitions pending. It is stated by ld. counsels that it will be difficult to take up all the 28 cases on the same day as the testimony of petitioners and some witnesses in each of the cases or group of cases will be different whereas testimony of some of the witnesses will be common. As suggested by the ld. counsels for all the parties that in the bigger group of cases, case bearing no.284/10 be treated as smaller group for the purpose of consolidation and recording of evidence. Testimony of particular witnesses which are relevant only for this petitions may be recorded in this case whereas the testimony of common witnesses which are common in all 28 cases may be recorded in the main case titled Sapna Talwar Vs. Raj Singh.
............................."Page No.26 of 313
It was further observed by ld. Predecessor vide order dated 06.12.2012 as follows:
"............Vide orders dated 06.08.2008 of my Ld. Predecessor as many as 28 cases arising out of the same accident were consolidated so as to avoid any confusion. As issue No.1 was common in all the petitions the evidence was ordered to be recorded in the main file titled as 'Sapna Talwar Vs. Raj Singh & Ors.' to be read in all the cases on Issue No.1. .................."
It may also be noticed that the evidence and the documents relating to some of the claim petitions have been placed by the counsels by clubbing in the connected files relating to the petitioners belonging to the same family. Given long pendency of over seven years from the filing of claim petitions and the difficulties expressed by the counsels in placing the certified copies of evidence/relevant exhibits in each and every case, all the 29 cases have been taken up together for disposal.
4. It may also be observed that issues have been separately framed in some of the petitions while the others were consolidated for the purpose of framing of issues from time to time by ld. Predecessors, which have been hereinafter reflected beneath the respective cases for sake of convenience. The first issue in all the claim petitions in common relates to "whether the accident had taken place due to rash and negligent driving by Respondent No.1 (i.e. driver of bus bearing Regn. No. DL- 1PC-7676)" and the same has been dealt in lead case bearing Suit No.307/11 titled as 'Sapna Talwar Vs. Raj Singh & Ors.' dealing with common evidence on aforesaid issue.
Issue No.2 relating to assessment/computation of Page No.27 of 313 compensation in the respective cases has been thereafter separately dealt with under the respective suits along with the relevant evidence.
Thereafter, the common issue on the point of liability of the payment of compensation as disputed between the registered owner of the offending vehicle and insurance company has been dealt with along with relevant evidence led on behalf of Respondent No.2/insured and Respondent No.3/insurer.
*****************
5. CASE-A Suit No.307/11 Unique Case ID No.02401C-0674242007
1. Sapna Talwar W/o Late Sh.Madan Lal Talwar, (Wife)
2. Kamal Talwar S/o Late Sh.Madan Lal Talwar, (Son)
3. Sachin Talwar S/o Late Sh.Madan Lal Talwar, (Son) Versus Raj Singh @ Nasir Ali & Ors.
As per the case of the petitioners, Sh.Madan Lal Talwar (since deceased) had boarded bus no.DL 1 PC 7676 for pilgrimage and expired in the accident on 20.06.2007. It is further claimed that deceased Madan Lal Talwar aged about 65 years was employed as Supervisor at Jagdish Dheer & Company and earning about Rs.5,000/- per month. The petition has been preferred by Smt. Sapna Talwar (wife of deceased) aged about 56 yeas along with two major sons Kamal Talwar aged about 34 Page No.28 of 313 years and Sachin Talwar aged about 31 years as disclosed in the petition.
6. On the pleadings of the parties, following issues were framed for consideration vide order dated 31.03.2008 by ld. Predecessor:-
(i) Whether the deceased Shri Madan Lal Talwar died on account of rash and negligent driving of bus bearing registration no.DL 1 PC 7676 at Kanchi Mode, Dharamshala, District Kangra, HP by Respondent No.1?
(ii) Whether the petitioners are entitled to any compensation, if so, how much and from whom?
(iii) Relief.
7. In support of the claim petition two witnesses were examined namely PW1 Smt. Sapna Talwar (wife of deceased) and PW2 ASI Mohinder Singh. It may be observed that PW2 ASI Mohinder Singh has been examined in common to prove the record of criminal proceedings and a copy of statement has been placed in the respective cases.
PW1 Sapna Talwar deposed on the lines of claim petition and proved copy of Ration Card (Ex.PW1/1), photocopy of death certificate of deceased (Ex.PW1/2), Page No.29 of 313 photocopy of her Election I-card (Ex.PW1/3), photocopy of Election I-card of petitioner no.2 (Ex.PW1/4), certified copy of postmortem report of deceased (Ex.PW1/5) and certified copy of FIR (Ex.PW1/6).
She further deposed that petitioner no.2 Kamal Talwar aged about 34 years is the married son of the deceased and petitioner no.3 Sachin Talwar is unmarried son of the deceased aged about 26-27 years and is permanently handicapped.
On cross-examination, she clarified that she was not travelling in the said bus and could not tell the number of persons travelling in the bus. She further admitted that in the petition the age of deceased was mentioned as 65 years and she did not possess any document to show that deceased was employed with M/s Jagdish Dheer and Company.
PW2 ASI Mohinder Singh, PS Dharamashala, District Kangra HP proved the attested copy of criminal case record (Ex.PW2/1-collectively 157 sheets).
On cross-examination, he clarified that he was not the investigating officer of the case and could not say as to how many persons expired or sustained injuries in the accident.
8. On behalf of Respondent No.2 (M/s Pritpal Bus Service) three witnesses were examined as relied upon in all the claim petitions, namely R2W1 Harvinder Singh Oberoi/Proprietor Pritpal Bus Service, R2W1 Sh.Santosh Kumar Dealing Assistant, District Transport Authority, Rajpur Road, Page No.30 of 313 New Delhi to prove the permit and R2W3 Sh.Sampat Naik, MLO, Transport Authority, Burari.
R2W1 Harvinder Singh Oberoi (owner of the offending vehicle) testified that he was running travel agency in the name of M/s New Pritpal Bus Service, situated at 6/1, Prem Nagar, Tilak Nagar, New Delhi-18 and was holding a valid driving licence for driving a heavy motor vehicle since 1981. Further respondent no.1 Raj Singh approached him somewhere in June 2006 for appointing him as a driver for bus. He had seen the driving licence of respondent no.1 which appeared to be genuine and respondent no.1 was authorised as per licence to drive motorcycle/light motor vehicle, transport vehicles and PSV. Further he had taken the driving test of respondent no.1 and on being satisfied with the driving sense, respondent no.1 was appointed as a driver. On receiving information regarding the accident at Dharamala he had reached the site of accident. The licence was seized by the police, PS Dharamsala in case FIR No.125/07. He further stated that the bus was mechanically fit to run on the road and was purchased in the year 2005. Further he was in possession of All India Tourist permit. He further proved the copy of RC (Ex.R2W1/1), original Insurance policy (Ex.R2W1/2), attested copy of FIR (Ex.R2W1/3), original receipt of road tax of Delhi (Ex.R2W1/4), original road tax/permit of Himachal Pradesh (Ex.R2W1/4), original road tax/permit (Ex.R2W1/5), copy of India Tourist Permit (Mark-X), copy of fitness certificate (Mark- Y), copy of seizure memo of DL of driver of the offending Page No.31 of 313 vehicle (Ex.R2W1/6).
On cross-examination by counsel for The New India Assurance Company Ltd., he deposed that he was running the transport business since 1978 and had engaged 7-8 drivers. He used to retain the photocopy of the driving licence of the driver employed by him. Further the driver employed by him for the bus involved in the accident was Nasir Ali and he had not obtained any identity proof from Nasir Ali. He further stated that appointment letter was never issued by him and neither he obtained verification of driving licence of the driver. He admitted that the driving licence which was given by the driver did not bear endorsement for driving in hilly area. He further clarified that there is no provision in the UP Motor Rules where by the driver is required to have endorsement to drive in the hills on the licence. Further the vehicle was to travel from Delhi to Chandigarh, Naina Devi, Baba Balak Nath, Chintpurni, Jwalaji, Kangra, Chamunda, Dharamshala, Meclodganj, Katra and finally return back to Delhi. He further proved the contract Ex.R2W1/DX and stated that the bus owned by him was 30 seater. He proved the list of passengers Ex.R2W1/DX1 and stated that the list was given to the insurance company at the time of claim but did not know if any acknowledgment was obtained.
He further admitted having filed a claim case before the Consumer Forum seeking damages for the bus and had placed the list Ex.R2W1/DX1. He further admitted that the bus had carrying capacity of 29 passengers besides one driver and conductor and the coverage was obtained for 29 passengers only.
Page No.32 of 313He denied that Ex.R2W1/DX and R2W1/DX1 were forged and fabricated or that he was aware that respondent no.1 was not having a valid licence.
R2W2 Santosh Kumar, Dealing Assistant, District Transport Authority, Rajpur Road, Delhi proved the permit of vehicle bearing registration No.DL 1 PC 7676 and submitted that the same was issued for the period upto 28.10.2010. He further stated that the authorisation bearing No.AITP/0462/2005 was valid from 29.10.2005 to 28.10.2006 and the permit was for 'All India Tourist permit'. He further proved the certified copy of the same as Ex.R2W2/1.
On cross-examination he submitted that the authorisation as mentioned in para 12 of Ex.R2W2/1 is required to be renewed every year. Further the said authorisation was renewed for the period 04.11.2006 to 27.10.2007 and the sitting capacity was mentioned as S.No.11 in Ex.R2W2/1.
R2W3 Sh.Sampat Naik, MLO, Transport Authority, Burari, Delhi proved the record regarding fitness of vehicle bearing registration no.DL 1 PC 7676 having chassis No.436051GUZ123782 receipt no.20088799 P valid from 28.10.2005 to 27.10.2007 (Ex.R2W3/1) and stated that the vehicle was fit for plying on road. He further proved the attested copy of screen report in respect of vehicle No.DL 1 PC 7676 showing the details of fitness, permit number and validity, chasis number, engine number (Ex.R2W3/2) and attested computer copy of permit No.CC/ALL/HQ/00746/2005 valid Page No.33 of 313 from 29.10.2005 to 28.10.2010 (Ex.R3W3/3). He further stated that permit no.AITP/0462/2005 was valid from 04.11.2006 to 27.10.2007. Further the original permit was issued for five years from 29.10.2005 to 28.10.2010 and thereafter the renewal is on yearly basis from 04.11.2006 to 27.10.2007.
On cross-examination, he denied that the record produced by him was not correct. He further stated that the total capacity of the aforesaid bus was for 31 persons and cannot carry more than said capacity.
9. Respondent No.3, New India Assurance Company Ltd. examined two witnesses as relied upon in all the claim petitions, namely Sh.Pramod Kumar, Clerk from RTO Office, Agra U.P. (R3W1) to prove that licence possessed by Respondent No.1 was fake and Sh.C.N.Sharma, Administrative Officer, The New India Assurance Company Ltd. (R3W2).
R3W1 Sh.Pramod Kumar, Clerk from RTO Office, Agra, U.P. testified that licence bearing No.407 dated 07.01.2005 was issued in the name of Sh.Ravi Kumar Aggarwal S/o Sh.R.C.Aggarwal, R/o Karamyogi Club, Kamla Nagar, Agra U.P. and valid for motorcycle and LMV (Private). Further, the licence No.407 was not issued in the name of Nasir Ali S/o Abdul Karim in the year 2005 and also proved the extract of register (Ex.R3W1/1). He further stated that he had also brought the register containing the record pertaining to licence no.2463 which was issued on 23.02.2001 in the name of Ansar Khan S/o Sh.N. Khan, R/o Ptholi, Agra, U.P. and proved the copy of the same as Ex.R3W1/2.
Page No.34 of 313On cross-examination on behalf of petitioners he denied that the DL no.407/05 was issued to Nasir Ali.
R3W2 C.N.Sharma, Administrative Officer, The New India Assurance Company Ltd. testified that vehicle no.DL 1PC 7676 was insured for the period 20.11.2006 to 19.11.2007 and a notice dated 30.06.2012 U/O 12 Rule 8 CPC was issued to owner to produce the insurance policy. He further proved on record policy issued by the Insurance Company in favour of the insured vehicle (Ex.R3W2/1), Notice U/o 12 Rule 8 CPC issued to owner of the offending vehicle (Ex.R3W2/2), postal receipt (Ex.R3W2/3). He further stated that another notice U/s 12 Rule 8 was issued to driver and owner of the offending vehicle for production of original policy, DL, fitness and permit and proved the notice U/o 12 Rule 8 CPC (Ex.R3W2/4), postal receipts (Ex.R3W2/5 & Ex.R3W2/6). He further testified that another notice U/o 12 Rule 8 CPC was given to driver and owner of the offending vehicle (Ex.R3W2/7) and further proved the postal receipts (Ex.R3W2/8 and Ex.R3W2/9).
He further testified that the insured vehicle was authroised to carry 30 passengers and premium was accordingly charged by the insurance company. However, the insured contrary to the terms of the permit was carrying 37 passengers at the time of the accident and committed the breach of the terms and permit of the policy. He further proved the certified copy of permit of the offending vehicle (Ex.R3W2/10) and copy of RC of the offending vehicle (Ex.R3W2/11).
Page No.35 of 313He further testified that the Investigator Sh.Ranjan Sharma deputed by the insurance company after the investigation submitted a report MARK-A dated 09.01.2010 whereby it was reported that 13 persons had died in the accident and 24 were injured.
He further testified that State Government had got detailed mechanical inspection report of the vehicle through Manager, HRTC, Dharamsala, who pointed out that 11 persons had died and 26 were injured. The copy of the report issued by SHO was proved as (Ex.R3W2/12). He further testified that DL bearing no.407/AG/05 possessed by Raj Singh @ Nasir Ali was found to be fake on verification. The copy of the licence was further exhibited as Ex.R2W1/13.
10. I have heard counsel for parties and perused the record and issue-wise findings are as under :-
Issue No. (i) Whether the petitioner sustained injuries on account of rash and negligent driving of DL 1 PC 7676 on 20.06.2007 at Bamukan Kantchi Mor, Dharamshala, HP by Respondent no.1?
At the outset it may be mentioned that the finding on issue no.1, whether the accident had been caused due to rash and negligent driving by Respondent no.1 is common in all the cases and is dealt in the present case itself.
In Bimla Devi and Ors. V. Himachal Road Page No.36 of 313 Transport Corporation and Ors., (2009) 13 SC 530, it was held that in a petition u/s 166 of the Motor Vehicles Act, 1988 the Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition. In New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court), it was observed that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just.
Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence. The relevant portion of the report is extracted hereunder:
".......that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and circumstances of each case but where such Page No.37 of 313 an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts."
Reference may also be made to observations in Ranu Bala Paul & Others vs. Bani Chakraborty 1999 ACJ 634 Gauhati wherein the claim was allowed after consideration of FIR before the Tribunal.
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accident Claim Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. In N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), the Supreme Court pointed out that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes.
The court is bound to take broad view of the whole matter."
Now coming back to the present case, it may be appropriate to refer to the evidence of the witnesses who Page No.38 of 313 sustained injuries in the accident and survived. The testimony of witnesses clearly reflects that the accident was caused due to rash and negligent driving by respondent no.1.
i) In suit No.309/11 Pooja Talwar vs. Raj Singh & Ors., petitioner Pooja Talwar (PW1) sustained grievous injuries in the accident and testified that the accident was caused due to rash and negligent driving of bus by respondent no.1.
During cross-examination, she reiterated that the driver of the bus was not driving the bus properly as it was noticed by her during the course of travelling. Further she was seated on the second seat from the driver's seat and clarified that the driver of the bus was driving in a rash and negligent manner despite being warned by several passengers.
ii) PW1 Sh.Surender Nijhawan (petitioner in Suit No.322/11, 323/11, 324/11 and 325/11 who lost his wife and daughter in the accident and also himself suffered severe injuries along with his son Master Akashay) deposed that the accident was caused due to rash and negligent driving by respondent no.1. On cross-examination he clarified that he was sitting on the front side and was awake at the time of accident. Further the bus was driven at a high speed and the driver was warned by a passenger sitting ahead of him to drive slowly.
Page No.39 of 313iii) PW1 Bimla Ahuja in Suit No.195/11, who sustained injuries in the accident and lost her son and husband in the accident deposed that the driver of the bus was warned by several passengers to drive carefully as he was driving the bus in a negligent manner.
iv) PW1 Hari Om Mahana (in Suit No.259/11) suffered grievous injuries/disability in the accident also deposed that the accident had been caused due to rash and negligent driving by Respondent No.1 and he was seated on the front seat in the bus at the time of accident.
v) PW4 Smt. Anu Gulati in Suit No.657/11 & 658/11 also deposed that the accident was caused due to rash and negligent driving by Respondent No.1 as the bus was driven at a high speed.
It may be noticed that testimony of material witnesses could not be dented during cross-examination and the accident stands corroborated by the site plan and mechanical inspection report prepared during the course of criminal proceedings. It may also be observed that respondent no.1 failed to enter the witness box to refute the testimony of material witnesses on record and also stands chargesheeted U/s 279/337/304A IPC vide FIR No.125/07 registered at PS Dharamsala, District Kangra. Further no complaint regarding Page No.40 of 313 false implication was ever filed on behalf of respondent no.1. Since negligence has to be assessed on touch stone of preponderance of probability, it has been established that the accident was caused due to rash and negligent driving by Respondent No.1. Issue No. 1 is accordingly decided in favour of the petitioners and against the respondents.
11. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, how much and from whom?
Admittedly, no documentary evidence has been placed on record to prove the factum of employment of deceased Madan Lal Talwar at Jagdish Dheer & Company at Rs.5,000/- per month. Neither the employer of the concerned company wherein deceased is claimed to be working was summoned. In absence of any cogent evidence to prove the employment and income of the deceased, the same is assessed on notional basis on the basis of minimum wages as notified by Govt. of NCT of Delhi of an unskilled labourer for the relevant period @ Rs.3,470/- per month.
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects be made but the same has been vehemently opposed by counsel for Insurance Company.
Observations in MAC Appeal No.544/07 decided on Page No.41 of 313 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be noticed.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.
I am of the considered view that in view of the aforesaid legal position as pointed out the Hon'ble High Court and in absence of any evidence with regard to good future prospects of deceased in the instant case, addition of income towards future prospects cannot be made for the purpose of compensation.Page No.42 of 313
(b) Deduction towards personal and living expenses of the deceased:
The elder son of the deceased namely Kamal Talwar is married and nothing has been brought on record to show in case he was financially dependent on the deceased. Considering the fact that petitioner no.3 Sachin Talwar (younger son of the deceased) is stated to be handicapped and dependent upon the deceased, the number of dependents is taken as two for the purpose of assessment of compensation. As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5th where the number of dependent family member exceeds 6.
In the present case considering the number of dependents as two, the deduction towards personal and living expenses of the deceased shall be 1/3rd as held in Sarla Verma's case (supra).
(c) Selection of multiplier:
The deceased is stated to be aged about 65 years in the petition. As per the copy of ration card (Mark-C) the date of birth of deceased is reflected as 1942. In the absence of exact date of birth of deceased and any evidence to the contrary, the age of deceased is considered within the bracket of 60-65 years for the purpose of applying the relevant multiplier. As per Page No.43 of 313 Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 07 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency In the light of aforesaid facts, loss of financial dependency of the petitioners comes to Rs.1,94,320/- [i.e. Rs.3,470/-(notional income) X 12 (months) X 07 (multiplier) X 2/3 (dependency)].
12. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles. It needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Petitioners are accordingly entitled to Rs.1 lakh Page No.44 of 313 towards loss of consortium to petitioner no.1 (wife), Rs.1 lakh towards loss of love and affection, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
13. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.1,94,320/- Loss of Consortium to Wife Rs.1,00,000/- Loss of love and affection Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.4,29,320/-
________________
(Rupees Four Lakh Twenty Nine Thousand Three Hundred and Twenty only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition w.e.f. 13.07.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
14. It has already been observed that elder son of the deceased was admittedly married and nothing has been brought on record if he was financially dependent upon deceased. In view of above, petitioner no.2 Shri Kamal Talwar shall be entitled to Rs.50,000/- out of the compensation amount for loss of love & affection and support of his father.
Further, for the purpose of disbursement, Page No.45 of 313 petitioner no.1 & 3 each shall be entitled to 50% of the balance award amount with up to date interest. On realization, an amount of Rs.50,000/-each (Rupees Fifty Thousand only) shall be released to the petitioner no.1 & 3 and remaining amount along with up-to-date interest shall be kept in five fixed deposits of equal amount in their respective names for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their account.
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15. CASE-B Suit No.309/11 Unique Case ID No.02401C-0674242007 Smt.Pooja Talwar W/o Sh.Kamal Talawar Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner Smt. Pooja Talwar had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and sustained injuries in the accident on 20.06.2007. It is further the case of the petitioner that she is a housewife and loss of income may be assessed on notional basis.
16. On the pleadings of the parties, following issues were framed for consideration vide order dated 03.03.2008 by ld. Predecessor :-
Page No.46 of 313(i) Whether the petitioner suffered grievous injuries on 20.06.2007 due to rash and negligent driving of the vehicle No.DL 1 PC 7676 by Respondent No.1?
(ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
(iii) Relief.
17. In support of the claim, petitioner was examined as PW1.
PW1 Pooja Talwar testified on the lines of claim petition that she was one of the passengers in bus no.DL 1PC 7676 on pilgrimage along with her relatives and friends. The bus fell down at Kantchi Mode, PS Dharamsala, District Kangra, HP on 20.06.2007 about 11:00PM due to rash and negligent driving of respondent no.1 and she sustained injuries on scalp and right foot. Further, she lost her father and Bhabhi in the same accident. She further testified that she is a housewife and could not resume household duty for about 03 months.
She also testified that her daughter Riya Talwar (Minor), aged about 3 years also sustained accidental injuries and proved photocopy of Election I-card (Ex.PW1/1), attested copy of her MLC (Ex.PW1/2), copy of 12th certificate (Ex.PW1/3) and attested copy of MLC of Riya Talwar Page No.47 of 313 (Ex.PW1/4).
On cross-examination by counsel for Respondent No.1 & 2 she clarified that the bus was plying continuously for two hours and she was awake at the time of accident. Further the driver of the bus was not driving the bus properly as it was noticed by her during the course of travelling and she was seated on the second seat from the driver seat. She further deposed that the bus was hired by one Baldev and they had paid a fare of Rs.2,000/-each. Further as per her estimate there were about 30- 35 passengers at the time of accident including minor children. On further cross-examination by counsel for insurance company she clarified that the driver of the bus was driving in a rash and negligent manner despite being warned by several passengers. Further her daughter was also travelling with her at the time of accident but she had not filed any record of medical expenditure of her daughter.
18. Issue No. (ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injuries, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner fairly admits that no Page No.48 of 313 medical bills have been filed relating to the treatment. The injuries sustained by the petitioner have been described in the MLC as placed in suit no.307/11-Sapna Talwar's case on page 150 as follows:
"cut injury of scalp 3X2 cm in size, pain right foot, advised X-ray".
Further, as per the case summary the patient was discharged on the same date as no fracture was detected.
Considering the fact that the petitioner suffered simple injuries and was not admitted as an indoor patient, there does not appear to be any loss of income. However, considering the fact that the petitioner remained under trauma and suffered simple injuries in the accident, she is awarded a sum of Rs.15,000/- towards pain and suffering for the injuries sustained by her in the accident.
Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance for travelling from Himachal to Delhi after the accident.
19. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
Page No.49 of 313
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petiton i.e. w.e.f. 13.07.2007 till realization.
20. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
*******************************
21. CASE-C Suit No.308/11 Unique Case ID No.02401C-0674222007 Sh. Kamal Talwar, guardian/father of Ms. Riya Talwar, Versus Raj Singh @ Nasir Ali & Ors.
In brief, Smt. Pooja Talwar along with her daughter/petitioner Riya Talwar aged about 03 years had boarded bus no.DL 1 PC 7676 for pilgrimage and both had sustained injuries in the accident on 20.06.2007.
22. On the pleadings of the parties, following issues were framed for consideration vide order dated 03.03.2008 by ld. Predecessor :-
(i) Whether the petitioner suffered grievous injuries on 20.06.2007 due to rash and negligent driving of the vehicle No.DL 1 PC 7676 by Respondent No.1?Page No.50 of 313
(ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
(iii) Relief.
23. Evidence in respect of injuries sustained by Pooja Talwar and Riya Talwar was led in Suit No.309/11 and PW1 Pooja Talwar was examined in support of the claim petition.
24. Issue No. (ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner admits that no medical bills have been filed relating to the treatment. The injuries sustained by the petitioner Riya Talward have been described in the MLC (placed in suit no.307/11-on page 146) as follows:
"cut injury below right eye-2 cm in size and scratch 1X1 cm behind left ear".
Further, as per the case summary, patient was discharged on the same day and the nature of injury is simple.
Admittedly, petitioner Riya Talwar suffered simple Page No.51 of 313 injuries and was not admitted as an indoor patient. Considering the fact that the petitioner simple injuries and remained under trauma, she is awarded a sum of Rs.15,000/- towards pain and suffering for the injuries sustained in the accident.
Also, a sum of Rs.5,000/- is awarded towards diet and conveyance for travelling back from Himachal to Delhi.
25. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 13.07.2007 till realization.
26. Since the injured is a minor, entire compensation amount along with up-to-date interest shall be fixed deposited in her name with a nationalised bank till she attains the age of majority without the facility of loan, advance or premature withdrawal with release of periodical interest in the account of Shri Kamal Talwar (father of Riya Talwar) for benefit of minor.
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27. CASE-D Suit No.21/16 Page No.52 of 313 Unique Case ID No.02401C-0027012016
1. Sh. Ajay Tiwari S/o Lt.Sh.Kameshwar Tiwari (Son)
2. Sh. Amit Tiwari S/o Late Sh.Kameshwar Tiwari (Son) Versus Raj Singh @ Nasir Ali & Ors.
As per the case of the petitioners, deceased Kanti Devi had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and expired in the accident on 20.06.2007. It is further the case of petitioners that the deceased was a widow and is survived by her two sons namely Ajay Tiwari and Amit Tiwari (i.e. petitioners aged about 20 years and 18 years respectively). It is further claimed that deceased aged about 42 years was working as a Peon with Central Social Welfare Board, Ministry of Human Resource Development and drawing a salary of Rs.10,000/- per month.
28. On the pleadings of the parties, following issues were framed for consideration vide order dated 29.02.2008. This case has been received on transfer by this Tribunal vide order dated 16.11.2015 passed by the Hon'ble High Court:
(i) Whether the deceased Smt. Kanti Devi had sustained fatal injuries on 20.06.2007 at about 11:00PM at Kanchi Mode, PS Dharamshala, Distt. Kangra, HP due to rash and negligent driving of respondent no.1 Raj Singh while driving bus bearing registration no.DL 1 PC 7676?Page No.53 of 313
(ii) Whether the petitioners are entitled to any compensation, if so, how much and from whom?
(iii) Relief.
29. In support of the claim petition, three witnesses were examined namely PW Ajay Tiwari (petitioner no.1), PW2 Pooja Talwar and PW3 Jogender Singh Suri, UDC, Central Social Welfare Board, Ministry of Woman & Child Development, New Delhi.
PW1 Ajay Tiwari testified on the lines of claim petition and stated that deceased was sole bread earner of the family and employed as Peon at Central Social Welfare Board, Ministry of Human Resource Development and was drawing a salary of about Rs.10,000/- per month. PW1 and Petitioner no.2 aged about 18 years were unmarried and financially dependent upon the deceased. He further proved copy of Ration Card (Ex.PW1/1), copy of death certificate (Mark-X) and criminal case record (Ex.PW1/2-collectively 13 pages).
On cross-examination, he stated that he came to know about the accident on the next day through News Channel and he along with his brother left the site of accident as his father had predeceased. Further he had been given employment on compassionate grounds.
PW2 Pooja Talwar testified that she was one of the passengers in the bus which met with the accident due to rash Page No.54 of 313 and negligent driving by respondent no.1. Further she had also sustained the injuries in the accident and proved her Election I- card (Ex.PW2/1).
In the short cross-examination she denied that she was not travelling in the bus which met with the accident.
PW3 Sh.Joginder Singh, UDC, Central Social Welfare Board deposed that deceased Smt. Kanti was working in the office as Peon on monthly gross salary of Rs.10,133/- on the date of accident i.e. June 2007 which would have increased with the passage of time. He further proved the salary record (Ex.PW3/1) and stated that deceased would have retired on 31.05.2023.
30. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, how much and from whom?
In the present case petitioners have relied upon the testimony of PW3 Sh.Joginder Singh, UDC, Central Social Welfare Board who deposed that deceased Smt. Kanti was working in the office at Peon on monthly gross salary of Rs.10,133/- on the date of accident i.e. June 2007. He further proved the salary record (Ex.PW3/1) and stated that deceased would have retired on 31.05.2023. As per the pay slip for the month of June 2007, the gross salary is reflected as Rs.10,133/-
Page No.55 of 313on which the income tax is reflected as nil. The same has not been disputed by counsel for insurance company and is accordingly taken for the purpose of assessing loss of dependency.
b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 30% be made considering the fact that deceased was aged about 42 years at the time of accident.
In Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Hon'ble Apex Court has held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the ear-
lier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of In- dia, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 134):
Page No.56 of 313"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addi- tion of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the de- ceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no ad- dition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different per- centage of increase, it is necessary to standardise the ad- dition to avoid different yardsticks being applied or dif- ferent methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death with- out any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
In view of the legal position as pointed out above since the deceased in the instant case was permanently employed and aged about 42 years, an addition of 30% is to be made towards future prospects for the purpose of Page No.57 of 313 compensation.
(c) Selection of multiplier and deduction towards living and personal expenses As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5 th where the number of dependent family members exceeds 6.
As per Ration Card, the deceased was aged about 38 years on 20.08.2002. Accordingly the age of the deceased was about 42 years 10 months on the date of accident. As held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 14 would have been normally adopted for the purpose of assessment of compensation as per age of deceased.
However, in the present case, it may be observed that the dependency of the petitioners, who are the sons of the deceased aged about 20 and 18 years is not to be last the entire lifetime but would have lasted in case of the younger son for a period of about 07/08 years till he attained the age of 25/26 years to be fully financially independent. Further, the dependency for the elder son aged about 20 years would have lasted for a period of about 05/06 years. Further, the dependency of the elder son ended as he had been provided with compassionate appointment as admitted by PW1 during cross-
Page No.58 of 313examination though it may be mentioned that the same cannot be termed as a pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction. Reference may be made to Vimal Kumar & Ors. v. Kishore Dan & Ors., 2013 ACC 1441. As such, the financial dependency needs to be assessed keeping in view the aforesaid peculiar circumstances as the object remains to save the dependents from being deprived of the source of their maintenance and as far as possible to provide them with the means as were available to them in the pre-accident period.
In Bajaj Allianz General Insurance Co. Ltd. v. Shri Surender Kumar & Ors. MAC APP 1068/2013 decided by Hon'ble Mr. Justice R.K. Gauba on 03rd May, 2016, the case involved the death of Babu Lal aged about 58 years who was a widower and was survived by son aged 31 years and daughter aged 34 years. The insurer in appeal questioned the computation of loss of dependency on the ground that the claimants son and daughter were major and, therefore, not financially dependent upon the father. The said contention was rejected by the Hon'ble High Court referring to the law laid down in National Insurance Co. Ltd. v. Meghji Naran Sortiya & Ors. 2009 ACC 289 (SC) and Devi Dutt & Ors. v. Manish Sharma & Ors. MAC APP No.753/2010 decided by Hon'ble High Court of Delhi on 19.04.2012.
In National Insurance Co. Ltd. v. Meghji Naran Sortiya & Ors. 2009 ACC 289 (SC), the Hon'ble Apex Court in Civil Appeal No. 1171 of 2002 was dealing with the claim Page No.59 of 313 relating to death of mason aged about 58 years in motor vehicular accident and was survived by a married son and daughter-in-law. It was challenged by the insurance company that there was no conclusive evidence that the married son and daughter-in-law were dependent upon the deceased. In the facts and circumstances of the case, it was held by the Hon'ble Apex Court that 50% should have been deducted for personal and living expenses of the deceased of the income of the deceased at Rs.27,000/- per annum and not 1/3rd. Thus, the contribution to the family (or the savings by the deceased even assuming that claimants were fully dependent) would have been Rs.13,500/- per annum.
In MAC APP 53/2010 Sandeep Tomar & Anr. vs. Oriental Insurance Co. Ltd. & Others decided by Hon'ble Mr. Justice G.P. Mittal on 25th May, 2012 (Delhi High Court), deceased Smt. Rita Tomar died in a motor vehicular accident on 30.12.2003 and had an income of Rs.7,000/- per month as per the Income Tax Return. The deceased was survived by two sons aged about 21 and 18 years respectively. It was observed by the Hon'ble High Court that even though the appellants therein were not financially dependent upon the mother as the father had a high income yet the surplus income of the mother would have come to the hands of the appellants as loss to estate. In the facts and circumstances, 50% of the deceased's income as savings to the hands of the appellants was calculated as loss to estate. Further, an amount of Rs.1 lakh was also awarded towards loss of gratuitous services rendered by deceased.
I am of the considered view that considering the Page No.60 of 313 peculiar facts and circumstances in the present case wherein the dependency of the younger son is only to last for a period of about 07/08 years and the elder son has been provided with the compassionate appointment, the assessment of loss of dependency be made considering that 50% of the savings by the deceased would have landed in favour of the petitioners for the remaining period for which the deceased would have worked/survived. In view of above, instead of deduction of 1/3rd, the deduction of 1/2 is applied following National Insurance Co. Ltd. v. Meghji Naran Sortiya & Ors. 2009 ACC 289 (SC). The loss of dependency is accordingly calculated at Rs.11,06,524/- {Rs.10,133/- (income of the deceased) + 30% (future prospects) X 12 (months) X 14 (multiplier) X 1/2 (deduction towards living and personal expenses}.
The gratuitous services rendered by working wife and mother would be considerably reduced when they spent most of their time on their profession. In the facts and circumstances, a lumpsum compensation of Rs.1 lakh is also awarded towards gratuitous services rendered by the deceased.
31. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh Page No.61 of 313 & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh towards loss of love and affection, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are entitled to Rs.10,000/- towards loss of estate, Rs.1 lakh (Rs.50,000/- each) towards loss of love and affection and Rs.25,000/- towards funeral expenses.
32. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.11,06,524/-
Loss of Love and affection Rs.1,00,000/
Loss of gratuitous services Rs.1,00,000/
Funeral Expenses Rs.25,000/
Loss of Estate Rs.10,000/-
________________
Total Rs.13,41,524/-
________________
(Rounded off to Rs.13,41,525/-)
(Rupees Thirteen Lakh Forty One Thousand Five Hundred & Twenty Five Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 05.07.2007 till realization.
33. For purpose of disbursement, petitioner no. 1 shall Page No.62 of 313 be entitled to 40% & petitioner no.2 for 60% of the award amount and proportionate interest thereon respectively.
On realization, out of the respective shares of petitioner no. 1 & 2, a sum of Rs.50,000/- (Rupees Fifty Thousand Only) each shall be released and remaining amount shall be kept in seven fixed deposits of equal amount with a nationalised bank in the names of petitioner no. 1 & 2 for a period of one year, two years, three years, four years, five years, six years and seven years respectively without the facility of loan, advance or premature release with release of quarterly periodical interest in their account.
******************************
34. CASE-E Suit No.305/11 Unique Case ID No.02401C-0674262007
1. Sh.Rajeev @ Rajeev Malhotra S/o Sh.Mohinder Kumar (Husband)
2. Master Jai Malhotra S/o Sh.Rajeev Malhotra (Son) (Petitioner No.2 through his natural guardian/father Sh.Rajeev)
3. Smt. Sapna W/o Late Sh.Madan Lal R/o 311, Railway Colony, Patel Nagar, New Delhi Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioners, deceased Smt. Goldy Malhotra aged about 30 years had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and expired in the accident on 20.06.2007. It is further the case of petitioners that the deceased was 12th pass and besides doing household work was earning Page No.63 of 313 Rs.5,000/- per month by way of teaching tuitions.
Master Jai Malhotra aged about 03 years (son of Smt. Goldy Malhotra) also suffered injuries in the accident.
35. On the pleadings of the parties, following issues were framed for consideration vide order dated 31.03.2008 by ld. Predecessor:-
(i) Whether the petitioner suffered grievous injuries on 20.06.07 due to rash and negligent driving of the vehicle No. DL 1PC 7676 by R-
1?
(ii) Whether the petitioner is entitled to any compensation, if so, how much and from whom?
(iii) Relief.
36. In support of the claim, Shri Rajeev Malhotra (husband of deceased) was examined as PW1.
PW1 Rajeev Malhotra testified that deceased is survived by petitioner No.1(husband of deceased, who has since not remarried), petitioner no.2 (minor son aged about 03 years) and petitioner no.3 (mother of deceased aged about 56 years) . He further testified that deceased, an income tax payee was working as a tutor & interior designer and earning about Rs.10,000/- per month. He further proved photocopy of Election Page No.64 of 313 I-card (Ex.PW1/1), photocopy of Election I-card of deceased (Ex.PW1/2), photocopy of death certificate of deceased (Ex.PW1/3), original income tax returns of deceased for the 2003-06 (Ex.PW1/4-collectively 12 sheets), photocopies of education qualification documents of deceased (Ex.PW1/5- collectively 04 sheets) and attested copy of postmortem report (Ex.PW1/6).
On cross-examination PW1 deposed that he was not an eyewitness to the accident and his in-laws had booked the ticket of deceased along with her kid. Further he was working as a salesman in a furniture shop. He further denied the suggestion that he was carrying the business in the name of Goldy Interior in the name of his wife. He further admitted that no document had been placed to show that deceased was imparting tuition.
37. Issue No. (ii) Whether the petitioners are entitled to any compensation, if so, how much and from whom?
The principles to assess the value of services rendered by a homemaker so as to calculate the loss of dependency are summed up in para 34 of Royal Sundram Alliance Insurance Co. Ltd. vs. Manmeet Singh & Ors 2012 ACJ 721.
However, in the present case it is claimed that deceased was earning by way of tuition and also carrying the Page No.65 of 313 business of interior decoration. Reliance is further placed upon the income tax return Ex.PW1/4-collectively filed by the deceased for the assessment year 2003-04 (financial year 01.04.2002 to 31.03.2003), assessment year 2004-05 (financial year 01.04.2003 to 31.03.2004) and assessment year 200-06 (financial year 01.04.2005 to 31.03.2005). As per return for the assessment year 2003-04, the net income of the deceased was Rs.82,428/- (income from business/profession Rs.83,450/- minus tax paid Rs.1,022/-), As per return for the assessment year 2004-05, the net income of the deceased was Rs.85,224/- (income from business/profession Rs.86,530/- minus tax paid Rs.1,306/-) and as per return for the assessment year 2005-06, the net income of the deceased was Rs.1,04,780/- (income from business/profession Rs.1,04,780/- minus tax paid Nil).
Since the returns were filed prior to the death of the deceased there is no reason to disbelieve the same. In the facts and circumstances for the assessment of compensation, the income of the deceased is taken as average of returns for the last three assessment years at Rs.90,810/-per annum (Rs.82,428/- + Rs.85,224/- + Rs.1,04,780/- divided by 3) .
(a) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 30 years but the same has been vehemently opposed by counsel for Insurance Company.
It may be observed that in Shashikala & Ors. v.
Page No.66 of 313Gangalakshmamma & Anr. 2015 (2) T.A.C. 867 (SC), separate judgments were passed by Hon'ble Mr. Justice R. Banumathi and Hon'ble Mr. Justice V. Gopala Gowda on the point of assessment of addition to the income of the deceased towards the future prospects in case of salaried persons vis-a-vis where the deceased was self employed or on fixed wages. The case was directed to be placed before the Hon'ble Chief Justice of India for appropriate orders towards constitution of a suitable larger Bench since the issue already stood referred to a larger Bench in the case of National Insurance Company Ltd. v. Pushpa S.L.P. (C) No. 16735/2014. Hon'ble Apex Court in aforesaid case adverted to the judgements passed in Reshma Kumar & Ors. v. Madan Mohan & Anr., VII (2013) S.L.T. 489 (rendered on 2nd April, 2013) and Rajesh vs. Rajbir Singh, (2013) 9 S.C.C. 54 (rendered on 12th April, 2013 in which the judgement passed in Reshma Kumari's case was not noticed). Reference was also made to the judgements passed in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., 162 (2009) D.L.T. 278, Santosh Devi v. National Insurance Co. Ltd. & Ors., 2012 6 S.C.C. 421, Sanjay Verma v. Haryana Roadways, (2014) 3 S.C.C. 210, National Insurance Co. Ltd. v. Pushpa, S.L.P. (C) No. 16735/2014 (whereby the matter in relation to future prospects was referred to larger Bench). It may further be noticed that Hon'ble Apex Court in Shashikala's case did not provide addition towards future prospects pendente lite the aforesaid issue, wherein the deceased was an income tax payee carrying business of newspapers and had relied upon Income Tax Returns for the Assessment Years 2005-06 and Page No.67 of 313 2006-07.
In the aforesaid context, reliance may be further placed upon MAC 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 by Hon'ble Mr. Justice G.P. Mittal (Delhi High Court) wherein the judgements passed by the Hon'ble Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors., Civil Appeal No.4497 of 2015 decided on 15.05.2015 {II (2015) ACC 806 (SC)} was also duly referred but the addition towards future prospects was denied in the absence of any evidence of bright future prospects. Reliance was therein placed upon Reshma Kumari & Others vs. Madan Mohan & Anr. (2013) 9 SCC 65 and HDFC Ergo General Insurance Company Ltd. vs. Smt. Lalta Devi & Others MAC APP No.189/2014 decided on 12.01.2015.
The observations made by the Hon'ble High Court on the aspect of addition of future prospects as discussed in para 21 to 23 of MAC No. 79 of 2014 Bharti AXA General Insurance Company Ltd. vs. Smt. Poonam & Ors. decided on 27.05.2015 (supra) may be beneficially quoted:
21. As far as future prospects are concerned, there is no evidence on record that the deceased had bright future prospects. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors., MAC APP No. 189/2014, decided on 12.01.2015. Paras 8 to 21 of the report in Lalta Devi (supra) are extracted hereunder:Page No.68 of 313
8. It is no gainsaying that in appropriate cases some addition towards future prospects must be made in case of death or injury of a person pursuing a professional course. At the same time, it cannot be laid down as a uniform principle that every person pursuing professional course will have a bright future. There may be a student pursuing engineering from the reputed engineering colleges like Indian Institute of Technology (IIT), Regional Engineering College or any other reputed college. At the same time, a number of engineering Colleges have mushroomed where an engineering graduate may find it difficult to secure a job of an engineer. In the instant case, deceased Aditya, as stated earlier was a student of an unknown engineering college, i.e. Echelon Institute of Technology, Faridabad which is claimed to be affiliated to Maharshi Dayanand University, Rohtak. The Claimants have placed on record result-cum-detailed marks card of First and Second Semester.
It may be noted that the deceased had secured just ordinary marks in seven subjects and he had to re-appear in papers 1002 (Mathematical-I), 1006 (Foundation of Computer & Programming) and 1008 (Basics of Mechanical Engineering).
Similarly, in the Second Semester the deceased was absent in one of the 12 papers and out of 11 subjects for which he had taken examination, he was to re-
appear in four subjects. Thus, it will be difficult to say that the deceased was a brilliant student or that he was pursuing engineering from a well known or even mediocre college.
"7. As far as addition towards future prospects is concerned, the issue has been examined at great length by this Court in HDFC ERGO General Insurance Co. Ltd.
v. Smt. Lalta Devi & Ors. (supra). Paras 9 Page No.69 of 313 to 21 of the report in Lalta Devi are extracted hereunder:-
9. The learned counsel for the Claimants has referred to a three Judge Bench deci-
sion of the Supreme Court in Rajesh & Ors.
v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is get- ting fixed wages or is a seasonal employee or is a student.
10. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Trans-
port Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
11. On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while ap-
proving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors.
(supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v.
Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v.
DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier deci-Page No.70 of 313
sions in Susamma Thomas [Ker-
ala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as un- der: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , SCC p. 134):
"24. ... In view of the imponder-
ables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „ac-
tual salary‟ should be read as „ac -
tual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may in-
dicate a different percentage of increase, it is necessary to standard- ise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involv-
ing special circumstances."Page No.71 of 313
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriv-
ing at appropriate compensation.
We approve the method that an ad-
dition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years.
Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be jus-
tified in extraordinary circum-
stances and very exceptional cases."
12. The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr.
v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of diver-
gence of opinion in judgments of benches of co-equal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench Page No.72 of 313 (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selec-
tion of multiplier. It further laid down that addition towards future prospects to the ex- tent of 50% of the actual salary shall be made towards future prospects when the de- ceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 40-50 years. No addition towards future prospects shall be made where the deceased was self-employed or was getting a fixed salary without any provision of annual in- crement.
14. Of course, three Judge Bench of the Supreme Court in its later judgment in Ra- jesh relying on Santosh Devi v. National In- surance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addi- tion of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self-employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15. The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Road-
ways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under:-
"14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 :
(2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044], a two-Judge Bench of this Page No.73 of 313 Court while considering the following ques-
tions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para 10) "(1) Whether the multiplier speci-
fied in the Second Schedule ap-
pended to the Act should be scrupu-
lously applied in all the cases?
(2) Whether for determination of the multiplicand, the Act provides for any criterion, particularly as re-
gards determination of future prospects?"
15. Answering the above reference a three- Judge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p.
88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-
employed the actual income at the time of death should be taken into account for determining the loss of income un- less there are extraordinary and excep-
tional circumstances. Though the ex-
pression "exceptional and extraordi-
nary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd. [(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 :
(2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the reg-
ular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of in-
come by taking into account the possi-
ble future earnings. The said loss of in-
Page No.74 of 313come, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16. Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Supreme Court in another lat- est judgment in National Insurance Com-
pany Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under:-
"Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pro-
nouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17. Now, the question is which of the judg- ments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18. In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under:-
"12. Having carefully considered the submissions made by the learned Se-
nior Counsel for the parties and hav-
ing examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:Page No.75 of 313
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any sub-
sequent Bench of lesser or coequal strength.
(2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3- 3-2005.] A Bench of lesser quorum can-
not disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose deci-
sion has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correct- ness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17- 1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench it-
self feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispens- ing with the need of a specific reference or the order of the Chief Justice constituting Page No.76 of 313 the Bench and such listing. Such was the sit- uation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
19. Similarly, in Safiya Bee v. Mohd. Vaja- hath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as un- der:-
"27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its ap-
plication to the petition schedule property, judicial discipline and prac- tice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the state- ment of the law by a coordinate Bench of equal strength. It is an ac-
cepted rule or principle that the state- ment of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well-accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20. In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the de- cision of the Co- ordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Co-ordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under:-
Page No.77 of 313"9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V.
Patel case [(2007) 4 SCC 785 :
(2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the de-
cision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Pa-
tel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The deci-
sion in S.N. Narula case [(2011) 4 SCC 591] was binding on the subse-
quent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judg-
ments of this Court."
This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (supra) shall be taken as a binding precedent."
21.In the instant case, the deceased's actual or potential income is taken as Rs.20,000/- per month. Even if it is taken that the deceased was working with 'Dainik Janwani Samachar Patra', there was no evidence with regard to his good future prospects or that the deceased was in permanent employment.
22.Thus, in absence of any evidence of good future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal."
38. The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Page No.78 of 313 Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may also be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary".
Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
I am of the considered view that in view of aforesaid legal position as discussed by the Hon'ble High Court and in absence of any evidence with regard to good future prospects or permanent employment of deceased in the instant case, addition of income towards future prospects cannot be made for the purpose of compensation.
(b) Deduction towards personal and living expenses of the deceased:
Page No.79 of 313As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5 th where the number of dependent family member exceeds 6.
Since the deceased is survived by husband, minor son and her mother, the deduction towards personal and living expenses of the deceased shall be 1/3rd as held in Sarla Verma's case (supra).
(c) Selection of multiplier:
As per High School certificate (Ex.PW1/5), the date of birth of deceased is 03.10.1972. Accordingly, the deceased was aged about 34 years 8 months on the date of accident. As held in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the multiplier of 16 is to be adopted for the purpose of assessment of compensation.
(d) Loss of financial dependency In the facts and circumstances, loss of financial dependency of the petitioners comes to Rs.9,68,640/- [i.e. Rs.90,810/-per annum (income of the deceased per annum) X 16 (multiplier) X 2/3 (dependency)].Page No.80 of 313
39. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
There cannot be any discrimination in compensation under the non-pecuniary heads in case of death of wife or husband relating to the heads of loss of consortium, loss of love and affection and funeral expenses. It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. Reference may also be made to MAC Appeal No.1036/12 HDFC Ergo General Insurance Company Ltd. vs. Bablu Sahani decided by Hon'ble Mr. Justice G.P.Mittal 03.03.2015, wherein the aforesaid amount was awarded towards compensation in case of death of a homemaker.
Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances petitioner no. 1 is entitled to Rs.1 lakh towards loss of consortium. Petitioners are further entitled Rs.1 lakh towards loss of love and Page No.81 of 313 affection, Rs.25,000/- are awarded towards funeral expenses and Rs.10,000/- towards loss of estate, .
40. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.9,68,640/- Loss of Love and affection Rs.1,00,000/- Loss of consortium to petitioner no.1 Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
Loss of Estate Rs.10,000/-
________________
Total Rs.12,03,640/-
________________
(Rupees Twelve Lacs Three Thousand Six Hundred & Forty Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 13.07.2007 till realization.
41. For purpose of disbursement, petitioner no.1 Rajeev @ Rajeev Malhotra (husband of deceased) shall be entitled to 50%, petitioner no. 2 Master Jai Malhotra (minor son of deceased) & petitioner no.3 Smt. Sapna (mother of deceased) shall be entitled to 25% each of the award amount along with proportionate up-to-date interest.
On realization, out of the share of petitioner no.1, Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to petitioner no.1 and remaining amount shall be kept in seven fixed deposits of equal amount in his name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years respectively without the Page No.82 of 313 facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
The share of petitioner no.2 Master Jai Malhotra (minor son of deceased) shall be put in fixed deposit in his name with a nationalized bank till he attains the age of 21 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner No.1 Rajeev @ Rajeev Malhotra (father) for the benefit of minor.
Out of the share of petitioner no.3 Smt. Sapna (mother of deceased), Rs.50,000/- (Rupees Fifty Thousand Only) shall be released to petitioner no.3 and remaining amount shall be kept in five fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
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42. CASE-F Suit No.306/11 Unique Case ID No.02401C-1059072008 Rajeev Malhotra, guardian/father of Master Jai Malhotra Versus Raj Singh @ Nasir Ali & Ors.
In brief, Master Jai Malhotra, aged about 03 years along with his mother (Smt. Goldy Malhotra) and other Page No.83 of 313 passengers had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and sustained injuries in the accident on 20.06.2007. Mother of Master Jai Malhotra also suffered fatal injuries in the accident.
43. On the pleadings of the parties, following issues were framed for consideration vide order dated 06.08.2008 by ld. Predecessor :-
(i) Whether the petitioner sustained injuries on account of rash and negligent driving of DL 1 PC 7676 on 20.06.2007 at Bamukan Kantchi mor, Dharamshala, HP by Respondent No.1?
(ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
(iii) Relief.
44. In support of the claim petition, Rajeev @ Rajeev Malhotra, father/guardian of minor petitioner Jai Malhotra was examined as PW1.
PW1 Rajeev @ Rajeev Malhotra testified on the lines of claim petition that Master Jai Malhotra along with his mother and relative were travelling as passengers in bus no.DL 1 PC 7676. Further Master Jai Malhotra aged about 03 years suffered grievous injuries along with fracture of right femur/leg Page No.84 of 313 and shoulder (fracture clavicle). It was further claimed that expenses of about Rs.30,000/- was incurred at Medical College, Kangra and Dr.P.L. Arora Clinic, Delhi. He further proved photocopy of his Voter's I-card (Ex.PW1/1), photocopy of birth certificate of his son Jai Malhotra (Ex.PW1/2), attested copy of MLC and prescription slip (Ex.PW1/3-collectively).
On cross-examination he clarified that he was not an eyewitness to the accident. Further he had not brought any document to show that he had incurred Rs.30,000/- on medical treatment and Rs.25,000/- on conveyance, special diet and attendant charges as mentioned in the affidavit. He further stated that he had no document to show that his son had been advised medical rest for a period of four months.
45. Issue No. (ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner admits that no medical bills have been filed relating to the treatment. The injuries sustained by the petitioner have been described in the MLC Ex.PW1/3 as follows:
"scalp lacerated injury-3 cm in size, (?) fracture Page No.85 of 313 right femur-advised X-ray. Admit Ortho ward. It was further observed that final opinion would be given after orthopaedic record".
It may be observed that the petitioner further annexed a photocopy of prescription of Dr.P.L.Arora dated 22.06.2007, wherein some treatment appears to be reflected for fracture Clavicle along with prescription of medicines. However, no X- Ray or any other conclusive document has been filed on record to conclusively hold if the petitioner had suffered fracture in the accident.
Considering the nature of injuries including the treatment for suspected fracture clavicle as per photocopy of prescription slip dated 22.06.2007 and the trauma suffered in the accident petitioner is awarded a sum of Rs.40,000/- towards pain and suffering and medical treatment. Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance. No separate medical bills reflecting any cost of treatment/medicines have been filed.
46. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.40,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.45,000/-
________________
(Rupees Forty Five Thousand Only)
The claimant/petitioner is also entitled to interest @ Page No.86 of 313 9% p.a. from the date of filing of claim petition i.e. w.e.f. 20.07.2007 till realization.
Since the injured is a minor, entire compensation amount along with up-to-date interest shall be kept in a fixed deposited in the name of injured Jai Malhotra with a nationalized bank upto the period till he attains the age of majority without the facility of loan, advance or premature withdrawal with release of periodical interest in the account of his father Shri Rajeev Malhotra for benefit of minor.
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47. CASE-G Suit No.310/11 Unique Case ID No.02401C-1059172008 Ms. Sunita Rao @ Jyoti Rao Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner Sunita Rao (aged about 24 years) had boarded bus no.DL 1 PC 7676 for pilgrimage on 17.06.2007 and sustained grievous injuries in the accident on 20.06.2007. It is further the case of the petitioner that she was self employed and earning Rs.5,000/- per month.
48. On pleadings of the parties, following issues were framed for consideration vide order dated 06.08.2008 by ld. Predecessor :-
(i) Whether the petitioner sustained injuries on Page No.87 of 313 account of rash and negligent driving of vehicle no.DL 1 PC 7676 on 20.06.2007 at Bamukan Kantchi Mor, Dharamshala, HP by Respondent No.1?
(ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
(iii) Relief.
49. In support of the claim, petitioner was examined as PW1.
PW1 Sunita Rao @ Jyoti Rao @ Sunaina Rao testified on the lines of claim petition that she was one of the passengers in Bus No.DL 1 PC 7676 on pilgrimage along with her friends. The driver of the bus was driving at speed in the hilly area despite repeated requests of the passengers to drive slowly & cautiously and while taking a turn the bus hit the parapet wall. The driver jumped out of the bus leaving the passengers on mercy of God and the bus fell in the valley. PW1 further testified that she sustained cut on left knee and abrasion on right knee as depicted in MLC and proved copy of her Ration Card (Ex.PW1/1), attested copy of MLC (Ex.PW1/2), copy of her Graduation Degree (Ex.PW1/3).
On cross-examination, she clarified that the she was awake at the time of the accident and had noticed that the driver was not driving the vehicle properly. Further she was sitting on Page No.88 of 313 the second seat from the driver seat. She further deposed that as per her estimate there were 30-35 passengers in the bus at the time of accident including minor children.
50. Issue No. (ii) Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Counsel for the petitioner admits that no medical bills have been filed relating to the treatment. The injuries sustained by the petitioner have been described in the MLC Ex.PW1/2 as follows:
"cut injury on the left knee -1 cm in size and abrasion on right knee 1X2 cm in size".
It was further observed in the MLC therein that final opinion would be given after surgical case summary. Further as per the MLC the patient was discharged on the same day.
Considering the fact that the petitioner suffered simple injuries and was not admitted as an indoor patient, there does not appear to be any loss of income. However, considering the fact that the petitioner remained under trauma and suffered simple injuries in the accident, she is awarded a sum of Rs.15,000/- towards pain and suffering for the injuries sustained Page No.89 of 313 by her in the accident. Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance.
51. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 20.07.2007 till realization.
52. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
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53. CASE-H Suit No.390/11 Unique Case ID No.02401C-1058872008 Smt. Anju Mahajan Versus Raj Singh @ Nasir Ali & Ors.
As per the case of petitioner (Smt. Anju Mahajan), she was travelling in bus bearing registration No.DL 1 PC 7676 with other passengers on a pilgrimage in Himachal Pradesh Page No.90 of 313 since 17.06.2007 and suffered serious/grievous injuries in the accident on 20.06.2007.
Petitioner was initially admitted at Dr. Rajender Parsad Government Medical College Hospital, Tanda, District Kangra, Himachal Pradesh after the accident and was subsequently shifted to PGI, Chandigarh, Punjab on the same day considering the grievous nature of injuries. She was further transferred to Sir Ganga Ram Hospital, New Delhi on 23.06.2007 and remained admitted at Sir Ganga Ram Hospital, New Delhi till 03.07.2007. Thereafter, petitioner was again admitted at Sir Ganga Ram Hospital from 17.07.2007 to 28.07.2007.
It is further the case of petitioner that due to injuries sustained in the accident, she is unable to move both lower limbs. Further, there is no sensation below waist and loss of bladder/bowel control. It is also claimed that petitioner suffered permanent disability due to the injuries sustained in the accident.
It is also the case of the petitioner that prior to the accident she was gainfully employed at Kamdhanu Enterprises, M-7, DDA Market, Shakur Pur, Delhi and was earning Rs.14,000/- per month at the time of accident. Further, due to the injuries suffered in the accident, she had incurred a sum of Rs.8,00,000/- on her treatment. Also, she has been unable to take care of her child aged about 03 years and incurred Rs.10,000/- till filing of petition for engaging a maid at salary of Rs.5,000/- per month. Compensation is accordingly claimed for sum of Rs.60,00,000/-.
Page No.91 of 31354. On the pleadings of the parties, following issues were framed for consideration vide order dated 06.08.2008 by ld. Predecessor :-
(i) Whether the petitioner sustained injuries on account of rash and negligent driving of DL 1 PC 7676 on 20.06.2007 at Bamukan Kantchi More, Dharamshala, HP by Respondent no.1?
(ii) Whether the petitioner is entitled for compensation, if so, how much and from whom?
(iii) Relief.
55. In support of the claim petition, seven witnesses were examined on behalf of petitioner, namely PW1 Anju Mahajan; PW2 Sh.Pyra Singh (Medical Record Officer), Sir Ganga Ram Hospital; PW3 Dr. Kanti Kumar, Kuber Hospital, Pitampura, Delhi; PW4 Sh. Rajbeer Singh, Medical Record Clerk, City Hospital, New Delhi; PW5 Shri Rati Ram, Sr. Tax Assistant, Income Tax Department; PW6 Dr.Himanshu Kataria, Professor (Orthopaedics), Dr.R.M.L. Hospital and PW7 Dr.Ankush Garg, Consultant (Orthopedics), City Hospital, Ganga Ram Hospital, New Delhi.
It may be observed that ASI Mohinder Singh examined as PW2 in connected case bearing Suit No.307/11- Sapna Talwar Vs. Raj Singh to prove the record pertaining to the criminal proceedings arising out of FIR No.125/07 is common to all the claim petitions.
Page No.92 of 313PW-1 Anju Mahajan testified on the lines of claim petition and stated that on 20.06.2007 at about 10:00PM she along with other passengers was travelling in bus bearing registration No.DL 1 PC 7676 for a pilgrimage tour in Himachal Pradesh. They were on the way to Katra Mata Vaishno Devi Shrine from Dharamshala (Kangra) H.P. and had reached at Kantchi More. At the aforesaid time, the driver of the bus/Respondent No.1 was driving the bus at a high speed in a rash and negligent manner and as a result thereof, driver lost control over the bus and fell in the valley. Petitioner suffered grievous injuries and was rushed to Dr.Rajender Prasad Government Medical College Hospital, Tanda, District Kangra, H.P. where her MLC was prepared. Thereafter, she was shifted to PGI, Chandigarh, Punjab and later on shifted to Sir Ganga Ram Hospital, New Delhi for further treatment on 23.06.2007, where she remained admitted from 23.06.2007 to 03.07.2007. She further relied upon documents Ex.PW1/1 to Ex.PW1/10 filed along with the affidavit i.e. Medical bills (Ex.PW1/1), prescriptions and treatment record of various hospitals (Ex.PW1/2), Voter's I-card of petitioner (Ex.PW1/3), PAN Card of petitioner (Ex.PW1/4), Income tax returns of petitioner for the assessment years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 2007-08 (Ex.PW1/5-collectively), disability certificate of the petitioner (Ex.PW1/6), bills of payment to maid servants (Ex.PW1/7), Educational/professional qualification papers (Ex.PW1/8), attested copy of MLC (Ex.PW1/9), certified/attested copy of FIR No.125/07 dated 21.06.2007, PS:
Page No.93 of 313Dharamshala, Himachal Pradesh (Ex.PW1/10).
She further testified that the medical board assessed the permanent disability at 90% qua both lower and upper limb. Further, she has not been able to live a normal life after the accident. She further testified that prior to the accident she was earning Rs.14,000/- p.m. being employed at Kamdhanu Enterprises, M-70, DDA Market, Shakarpur, Delhi and was filing the income tax returns. She further testified that a maid servant was hired at Rs.3,000/- per month for the household services and another @ Rs.3,500/- per month to look after the petitioner.
On cross-examination, she deposed that they left Delhi on 17.06.2007 and till 20.06.2007 the journey was comfortable. She was sitting on the right side of the bus on the sixth seat. At the time of the accident the driver was driving at a high speed and was requested to drive slowly. There were about 30-35 passengers in the bus and on 19.06.2007 on the way a few passengers deboarded the bus for their houses and gave up further journey.
She further deposed that she took employment at Kamdhenu Enterprises and her husband was the proprietor of the firm in partnership with one Sh.Sushil Sharma. The said firm was being run by her husband before her marriage and had been issued an appointment letter. She denied the suggestion that her husband in order to book the expenses had shown her as an employee. She further clarified that her husband and Sushil Sharma were running the said enterprise in partnership. She admitted that in her affidavit she had not mentioned the name of Page No.94 of 313 the attendant and the dates for which attendant charges were paid. However, it was denied that the vouchers filed in this regard were false or fabricated for purpose of compensation. She further denied the suggestion that no loss of income had been suffered by her and that she could still work and earn.
PW-2 Pyra Singh, Medical Record Officer, Sir Ganga Ram Hospital, Delhi proved the original treatment record along with discharge summary and final bill for the period 21.07.2007 to 28.07.2007 (Ex.PW2/1).
PW-3 Dr.Kanti Kumar, Kuber Hospital, Delhi proved the discharge summary, entire treatment record and final bill for the period 28.07.2007 to 21.08.2007 in respect of Anju Mahajan (Ex.PW3/1-collectively).
On cross-examination, he clarified that besides being under his treatment the petitioner was mainly under the treatment of Dr.Shankar Acharya and never visited their hospital for check-up after her discharge from the hospital.
PW-4 Rajbeer Singh, Medical Record Clerk, City Hospital, Karol Bagh, Delhi proved the discharge summary, treatment record and final bill for the period 23.06.2007 to 02.07.2007 (Ex.PW4/1) and from 17.07.2007 to 21.07.2007 (Ex.PW4/2).
PW-5 Sh.Rati Ram, Sr. Tax Assistant, Income Tax Department proved the income tax return filed by petitioner Page No.95 of 313 Anju Mahajan for the assessment year 2007-08 (Ex.PW5/1). He also proved the income tax returns for the assessment years 2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 (Ex.PW1/5- collectively).
PW-6 Dr.Himanshu Kataria, Professor (Orthopedics), Dr.R.M.L. Hospital, New Delhi proved the disability certificate (Ex.PW1/6) and stated that the case is of fracture dorsolumbar spine with paraplegia with bladder/bowel involvement. He further stated that the petitioner suffered permanent disability to the tune of 90% in relation to whole body.
On cross-examination, PW6 clarified that he had examined the patient only at the time of assessing the disability. Further both her upper limbs are functioning and she could use the same. He further stated that it was noticed by Occupational Department while assessing her functional disability that petitioner requires mild assistance on shifting from bed to wheel chair and similarly on sitting to lying down. He also clarified that the patient has non-functional power in both her lower limbs with bladder and bowel involvement.
PW-7 Dr. Ankush Garg, Consultant (Orthopedics), City Hospital stated that petitioner was admitted at Sir Ganga Ram Hospital from 21.07.2007 to 28.07.2007 with operated case of fracture D 12 vertebra with paraplegia and discharging pus from operated side. He further stated that petitioner was operated on 25.06.2007 and D9 to L2 Page No.96 of 313 fixation and decompression was done. Further, petitioner was admitted at City Hospital, Pusa Road, New Delhi on 17.07.2007 and wound debridement was done on the same day and transferred to Sir Ganga Ram Hospital on 21.07.2007. He further stated that petitioner cannot move without assistance and needs the attendant to move but would be able to do all the desk work while sitting.
During cross examination he clarified that the petitioner can use her both upper limb.
It may also be mentioned that PW-2 ASI Mohinder Singh (examined in Suit No.307/11 Sapna Talwar v. Raj Singh & Ors. relevant in all the cases) proved the chargesheet, MLCs, postmortem reports, DL, RC, Insurance and other summoned record pertaining to FIR No.125/07, PS: Dharamshala, Distt. Kangra, H.P. (Ex.PW2/1-collectively 157 pages).
56. Issue No. (ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various Page No.97 of 313 heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;Page No.98 of 313
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by her due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Page No.99 of 313 Counsel for the petitioner contended that petitioner was employed with Kamdhanu Enterprises and earning about Rs.14,000/- per month and accordingly the income be assessed after addition of 50% towards future prospects since the petitioner was aged about 30 years at the time of accident. Reliance was further placed upon Income Tax Returns filed by the petitioner for the Assessment Year 2002-03, 2003-04, 2004- 05, 2005-06, 2006-07 and 2007-08.
On the other hand, the same was opposed by counsel for respondents and it was submitted that the petitioner had been booked to be an employee in the concern run by her husband for obtaining the benefit under taxation laws and the ITRs cannot be taken as true record of reflection of her income.
I have given considered thought to the contentions raised. It may be noticed that PW1 during cross-examination admitted that the said concern was run in partnership by her husband along with one Sushil Sharma. However, petitioner did not produce the appointment letter but volunteered that she was managing the entire office and stated that she was an income tax payee since 2000. The Income Tax Returns filed by the petitioner reveal that apart from the salary the Returns reflect additional income by way of "computer job work" and interest income from Bank and Post Office. Further, the net income of the petitioner for the relevant Assessment Years after deduction of tax paid as 'NIL' and other income arising out of interest is as under :
Page No.100 of 313 Assess Gross Salary Other Interest Net
ment Income (Rs.) Income Income Income
Year (Rs.) (Rs. (Rs.) (Rs.)
2002-03 72,000/- 72,000/- 15,000/- 4,200/- 67,800/-
2003-04 72,000/- 72,180/- 15,000/- 5,500/- 66,500/-
2004-05 68,500/- 72,000/- 15,000/- 5,500/- 63,000/-
2005-06 97,920/- 72,180/- 42,000/- 7,800/- 90,120/-
2006-07 1,21,980/- 72,180/- 42,000/- 7,800/- 1,14,180/-
2007-08 1,40,025/- 1,05,600/- 54,000/- 11,625/- 1,28,400/-
Admittedly, no documents have been filed by petitioner to corroborate the payment of salary by way of cheque, nor any appointment letter qua her appointment was produced. Also, the other income generated by the petitioner by computer job work has not been corroborated by filing of receipts/vouchers. The Income Tax Returns for the post accident period have not been filed on record. Neither the husband of the petitioner entered the witness box to show the documentary proof of the actual payment of salary to the petitioner by way of cheque or otherwise. It may also be noticed that the last Return for the Assessment Year 2007-08 was filed only on 07.12.2007 though the accident had taken place on 20.06.2007 and only in aforesaid Return the salary has suddenly increased from Rs.72,180/- to Rs.1,05,600/- while for the remaining years it has remained almost static without any increase. In the aforesaid background since the tax paid is NIL, the possibility cannot be ruled out that the inflated Income Tax Return for Assessment Year 2007-08 had been filed to book the expenses in the business run by the husband of the petitioner and cannot be considered. Considering the facts and circumstances, I am inclined to take the income of the petitioner Page No.101 of 313 for the purpose of assessment as average of net income for the last three Assessment Years (i.e. 2004-05, 20052-06 & 2006-07) excluding the Return for the last Assessment Year i.e. 2007- 08,which comes to Rs.89,100/- per annum.
(b) If addition in income towards future prospects is to be made Petitioner has claimed that addition towards future prospects to the extent of 50% be made considering the fact that petitioner was aged about 32 years (Date of Birth as per PAN card 12.11.1974) but the same has been vehemently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary".
Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper Page No.102 of 313 to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In view of the aforesaid legal position pointed out by the Hon'ble High Court, since the petitioner was not in permanent employment and has only been shown to be employed in the business carried by her husband, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, disability may be considered at 100% in view of assessment made by the Medical Board as per Disability Certificate dated 11.02.2016.
On the other hand, counsel for insurance company contended that functional disability of the petitioner be assessed at 45% considering the nature of disability qua the entire body.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely Page No.103 of 313 incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability as discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event Page No.104 of 313 the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the instant case, as per medical record available on record, immediately after the accident petitioner was admitted at Dr. Rajender Prasad Government Medical College Hospital, Tanda, Kangra on 21.06.2007 and owing to her precarious condition was taken to PGI, Chandigarh on 22.06.2007. Thereafter, on 23.06.2007 she was shifted to City Hospital (affiliated with Sir Ganga Ram Hospital, New Delhi) wherein she remained admitted from 23.06.2007 to 03.07.2007 and again from 17.07.2007 top 21.07.2007. On 21.07.2007 she was transferred to Sir Ganga Ram Hospital, New Delhi wherein she remained admitted from 21.07.2007 to 28.07.2007. Petitioner Page No.105 of 313 further remained admitted at Kuber Hospital (A Unit of Dheeraj Hospital Ltd)., Pitampura, Delhi from 28.07.2007 to 21.08.2007. Consequent to accidental injuries, petitioner has suffered 90% permanent physical impairment in relation to whole body and is unable to even manage her daily routine work.
The petitioner has relied upon Disability Certificate dated 19.12.2008 issued by Medical Board, Dr. Ram Manohar Lohia Hospital, Mangolpuri, New Delhi whereby it has been observed as under:
"......is a case of Post traumatic paraplegia (0/5 power) dorsolumbar spine with bladder/bowel involvement. She is physically disabled and has 90% (Ninety Percent) permanent (physical impairment) in relation to her whole body........."
Statement of PW-7 Dr. Ankush Garg, Consultant (Orthopedics), City Hospital may also be noticed who deposed that petitioner was admitted at Sir Ganga Ram Hospital from 21.07.2007 to 28.07.2007 with operated case of fracture D 12 vertebra with paraplegia and discharging pus from operated side. Further, she was operated on 25.06.2007 and D9 to L2 fixation and decompression was done. He further clarified that patient cannot move without assistance and needs the attendant to move but would be able to do all the desk work while sitting.
PW-6 Dr.Himanshu Kataria, Professor (Orthopedics), Dr. R.M.L. Hospital, New Delhi who proved the disability certificate (Ex.PW1/6) stated that the case is of fracture dorsolumbar spine with paraplegia with bladder/bowel involvement and the petitioner suffered permanent disability to Page No.106 of 313 the tune of 90% in relation to whole body.
In the facts and circumstances, considering the principles laid down in Raj Kumar Vs. Ajay Kumar, (supra), I hold that the petitioner suffered 100% functional disability for purpose of assessment of compensation.
(d) As per copy of PAN Card (Ex.PW1/4), date of birth of the petitioner is 12.11.1974. As such, the age of petitioner on the date of accident was about 32 years 07 months 08 days approximately. In view of Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the relevant multiplier of 16 is applicable for the purpose of assessment.
(e) The compensation is accordingly assessed towards loss of income/earning capacity at Rs.14,25,600/- {i.e. Rs.89,100/- (income per annum) X 100% (functional disability) X 16 (applicable multiplier according to age)}.
(f) Loss of amenities and loss of expectation of life due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the functional disability of 100% in relation to whole body suffered by the petitioner, she is awarded a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) on account of loss of amenities and Rs.1,00,000/- (Rupees One Lakh Only) is awarded towards loss of expectation of life due to permanent disability.
Page No.107 of 313(g) Pain and Suffering & Mental Agony As the petitioner suffered permanent physical disability of 90% and has been incapacitated from performing normal activities throughout her life, she is awarded a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) towards pain and suffering and mental agony.
(h) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.5,57,626/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.5,57,626/- towards medical bills/treatment.
(i) Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount towards conveyance during the period of treatment. In view of above, an amount of Rs.40,000/- (Rupees Forty Thousand Only) is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.60,000/- (Rupees Sixty Thousand Only) towards special diet.
(j) Attendant Charges Page No.108 of 313 Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
The petitioner/injured has suffered 90% permanent disability qua the entire body and is substantially confined though is able to use both her upper limbs. Since the requirement of assistance of an attendant is implicit from the evidence on record, I am of the considered opinion that the petitioner is required to be awarded attendant charges incurred during the period of treatment as well as for future on the assumption that she would require an attendant on regular basis. The expenditure towards this end can be computed on the basis of minimum wages of an unskilled worker relevant to the date of accident @ Rs.3,470/- per month. The compensation for future attendant charges is accordingly computed at Rs.6,66,240/- (Rupees Six Lakh Sixty Six Thousand Two Hundred & Forty Only) apart from the attendant charges of Rs.1,00,500/- incurred during the period of treatment. Reliance in this regard may also be placed upon MAC APP. 952/2011 Pritam Singh v. Oriental Insurance Co. decided by Hon'ble Mr. Justice R.K. Gauba on 28 March, 2016.
57. As discussed above, the overall compensation is Page No.109 of 313 tabulated as under:
Loss of Income/Earning Capacity Rs.14,25,600/-
Loss of amenities Rs.1,50,000/-
Loss of expectation of life due to permanent Disability Rs.1,00,000/-
Pain and Suffering Rs.1,50,000/-
Medicines & Medical Treatment Rs.5,57,626/-
Conveyance Charges Rs.40,000/-
Special Diet Rs.60,000/-
Attendant Charges (already incurred) Rs.1,00,500/-
Future Attendant Charges Rs.6,66,240/-
-----------------
Total Rs.32,49,966/-
(Rounded Off to Rs.32,50,000/-)
(Rupees Thirty Two Lakh Fifty Thousand Only) Claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 17.08.2007.
58. Disbursement Considering the medical expenses which have already been incurred, a sum of Rs.7 lakh be released to the petitioner and the remaining amount be fixed deposited in twenty fixed deposits of equal amount in her name with a nationalised bank for a period of one year, two years, three years, four years, five years, six years, seven years, eight years, nine years, ten years, eleven years, twelve years, thirteen years, fourteen years, fifteen years, sixteen years, seventeen years, eighteen years, nineteen years and twenty years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her Page No.110 of 313 account.
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59. CASE-I Suit No.279/11 Unique Case ID No.02401C-1465102008
1. Archana Rawal W/o Sh.Anil Rawal (Mother)
2. Anil Rawal S/o Late Sh.Tilak Raj (Father) Versus Raj Singh @ Nasir Ali & Ors.
In brief, Master Rahul @ Honey aged about 12 years (son of petitioners) was travelling in bus no.DL 1PC 7676 along with his uncle on a pilgrimage since 17.06.2007 and received fatal injuries in the accident on 20.06.2007. Compensation is claimed by the petitioners for Rs.15,00,000/-.
60. On the pleadings of the parties, following issues were framed for consideration vide order dated 07.04.2008 by ld. Predecessor:-
(i) Whether the deceased Late Master Rahul @ Honey had sustained fatal injuries on 20.06.2007 at about 11:00PM at Bamukan Kentchi More, Police Station Dharmshala, HP due to rash and negligent driving of respondent no.1 Sh.Nazir Ali @ Raj Singh while driving bus bearing registration no.DL 1 PC 7676?
(ii) Whether the petitioners are entitled to any Page No.111 of 313 compensation? If so to what amount and from whom?
(iii) Relief.
61. In support of the claim, petitioner no.1 was examined as PW1.
PW1 Archana Rawal testified on the lines of claim petition and proved copy of ration card (Ex.PW1/1), copy of certificate of merit issued to her son along with copy of I-card (Ex.PW1/2), cremation receipt (Ex.PW1/3), death certificate of the deceased (Ex.PW1/4), attested copy of postmortem report (Ex.PW1/5).
On cross-examination she deposed that she was not an eyewitness to the accident and her son was travelling with his maternal uncle.
62. Issue No. (ii) Whether the petitioners are entitled to any compensation? If so to what amount and from whom?
Counsel for the petitioner referred to judgments passed by MACT Tribunal, Karkardooma Courts (MAC Petition No.391/16 decided on 06.05.2016 by Ms. Ravinder Bedi, PO MACT & MACT Petition No.195/10 decided on 08.06.2016 by Ms. Kiran Bansal, PO, MACT).
Page No.112 of 313The method of calculation of compensation in accident claim cases involving death of children in Motor Vehicular Accident has been further clarified in MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram along with fifteen other appeals decided by Hon'ble Mr. Justice R.K. Gauba on 13.05.2016. Taking note of all the relevant judgments on the issue for determination of compensation in case involving death of children, the conclusions have been made in para 62 to 74 as under:
"62. The tribunals and courts will have to break free from the groove or strait-jacket of the stale, outdated and obsolete prescription of the second schedule to M.V. Act. Time has come, and it is the obligation of this court to do so, to bring the benchmark in Second Schedule to M.V. Act upto date, in the present matters for purposes of award of compensation in the case of death of children so as to make it "just" and "reasonable". The issue is about the proper mode of achieving this objective.
63. As noted above, the learned single Judge of this court, sitting in appeal over the judgments of the tribunal in the case of R.K. Malik (supra) while assessing the non-pecuniary damages had improved upon what was granted in Lata Wadhwa (supra) in relation to an accident of 1989 by applying the cost of inflation index notified by the Government of India under Section 48 of the Income Tax Act, 1961. The computation thus made was eventually approved by the Supreme Court, though with further addition towards future prospects. This holds the key to the predicament faced.
64. A similar route was taken by another single bench of this Court in a case for compensation arising out of an incident of terrorism in Kamla Devi v. Govt. of NCT of Delhi 2005 ACJ 216 (Delhi): 114 (2004) DLT 57, wherein the value of the conventional sum awarded in Lata Wadhwa (supra) was improved upon by applying the consumer price index for industrial workers [CPI (IW)]. The view in Kamla Devi (supra) was followed in a Page No.113 of 313 number of subsequent decisions of this Court in cases reported as Ashwani Gupta v. Government of India & Ors. 117 (2005) DLT 112; Tasleema v. State (NCT of Delhi) & Ors. ILR (2009) 6 Del 486 : (2009) 161 DLT 660 (DB); Nagrik Sangarsh Samiti & Ors. v. Union of India & Ors. ILR (2010) 4 Del 293 : 2012 ACJ 1548;
Swarn Singh v. Union of India 2010 SCC Online Del 1190 and Ashok Sharma & Ors. v. Union of India & Ors. ILR (2008) 1 Del 96 : 2009 ACJ 1063.
65. Having regard to the fluctuating trends in CPI (IW), this court finds the Cost Inflation Index (CII) determined and notified by the Ministry of Finance in Government of India under Section 48 of Income Tax Act, 1961 for each financial year, to be a better method to off-set the effect of inflation on the real value of money. This approach, if followed, would ensure that there is no inconsistency in the awards of compensation in cases of death of children. [R.K.Malik (supra) and Balram Prasad v. Kumar Saha (2014) 1 SCC 384]. Since the amount which requires to be subjected to correction was determined by decision in R.K.Malik wherein cause of action had arisen on 10.11.1997, the financial year 1997-98 is taken as the "base year".
66. For ready reference, the rates of Cost Inflation Index (CII) notified by the government till date, to the extent necessary, are reproduced in the table given below Financial CII Financial CII Year Year Before 100 2004-05 480 1/4/1981 1981-82 100 2005-06 497 1982-1983 109 2006-07 519 XXX XXX 2007-08 551 1997-98 331 2008-09 582 1998-99 351 2009-10 632 1999-2000 389 2010-11 711 2000-01 406 2011-12 785 2001-02 426 2012-13 852 2002-03 447 2013-14 939 Page No.114 of 313 2003-04 463 2014-15 1024 2015-16 1081 CONCLUSIONS
67. In the considered view of this Court, the cases for 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 to estate), in accordance with the age- group wise categories as in R.K.Malik (supra); the first category being of children less than 10 years‟ in age, the second category being of children more than 10 years‟ and up to 15 years‟ in age, and the third category of children more than 15 years‟ but not having attained the age of majority (18 years). The children in the third category would ordinarily be of such age group as is generally receiving formal school education or those that are (being) imparted special training so as to be equipped with requisite skills to be gainfully employed in a variety of trades. They are after all nearing adulthood and thus, on the threshold of becoming self-reliant. In such cases, the prospects of their employability and earnings in future or present, based on evidence adduced about their academic track record or training in special talents or skills, would need to be borne in mind. As in Lata Wadhwa (supra), the claim for pecuniary damages arising out of death of children of this age group cannot be at par with the lower age groups falling in the first and second category. Therefore, the pecuniary loss to estate due to their death would deserve to be worked out by applying a higher multiplier on the notional income (of non-earning persons) unless, of course, case is properly made out for higher considerations. Noticeably, in Sarla Verma (supra) the Supreme Court specified the multiplier of 18 for cases where the deceased was in the age-group of 15 years‟ to 20 years‟ old. For the first and second category, however, the multiplier of 10 and 15 respectively, as used in R.K. Malik (supra), would hold good.
68. 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 to the MV Act, the general practice of deduction of one-half (50%) towards personal & living expenses, as Page No.115 of 313 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 (1/3 rd) on this account, as provided by the first note below the second schedule would only be appropriate.
69. The award of compensation must necessarily take into account non-pecuniary damages. In R.K. Malik (supra), 75,000/- awarded by this Court as the "conventional compensation" was enhanced by the Supreme Court by further similar amount ( 75,000/-) as the "compensation for future prospects". For the reasons set out earlier, in the context of pecuniary loss to estate, the composite sum of non-pecuniary damages of 1,50,000/- [as awarded in R.K. Malik (supra)] would deservedly be added, but with suitable correction so as to ensure that the deficiency in the real value of money is made good. As noted (in para 46) earlier, the Supreme Court justified the addition of `75,000/- towards compensation for "future prospects" by noting that the said amount was "roughly half of the amount given on account of pecuniary damages". Since the court had also upheld the award of similar sum (`75,000/-) by this court as "conventional compensation", both amounts of non- pecuniary damages, put together, account for roughly an amount equivalent to the sum computed as pecuniary loss to estate. Thus, this court is of the view that a composite sum equal to the amount computed as pecuniary loss to estate may be added as non-pecuniary damages (inclusive of conventional compensation and for future prospects), in such cases as at hand to arrive at the appropriate figure of „just compensation‟.
70. It has been noticed by this Court that the tribunals have been assessing the compensation and awarding it to the last rupee, at times even in the fraction of a rupee, not bothering to follow the practice of rounding off. Awards in at least two of the cases from which the appeals at hand arise provide ready illustration. This seems to be not correct. It must be added here that human misery cannot be calculated with such mathematical precision. Even otherwise for convenience of accounting, it is desirable that the amount of award is rounded off to the nearest (if not Page No.116 of 313 next) thousands of rupees.
71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/-p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation-corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997-
1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner :-
` 15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring inflation-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the „base year‟]
(iii). After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation-
corrected amount), it shall be rounded off to a figure in next thousands of rupees.
Page No.117 of 313(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one-third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child.
72. The ruling in National Insurance Company Ltd. v. Farzana (2009 ACJ 2763) was rendered by a learned single Judge of this Court on 14.07.2009. Though it had built upon the dispensation in R.K.Malik (supra), given the effect of inflation elaborately discussed above, it has outlived its utility for cases relating to later years. At the same time, it must be noted, that the view in Farzana (supra) has governed the field till date, inasmuch as it has been followed by other single benches of this Court as also by tribunals in various cases. Given the modified method of calculation as is being determined by this judgment, it is possible that in some of the earlier decided cases, the compensation computed on revised lines may fall below the amount of 3,75,000/-
Page No.118 of 313computed in Farzana (supra). Since the awards in such earlier decided cases were granted with reference to the ratio in Farzana (supra), it will not be fair to order any modification in cases that relate to the period on or after 10.05.2000 (the date of cause of action in Farzana) so as to reduce the awards below the said amount of 3,75,000/-, particularly as some of such awards may already have been satisfied, including on account of interim orders of this Court.
73. Thus, in cases founded on cause of action arising on or after 10.05.2000, the amount of compensation shall not in any case be less than 3,75,000/- which was awarded in the case of National Insurance Co. Ltd. v. Farzana (2009 ACJ 2763).
74. Case-wise decisions taken hereinafter shall provide necessary illustrations for applying the above-directed method of computation."
63. It may further be observed that MAC Appeal No.250/13 decided along with MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram (supra) involved death of a 11 years old child namely Mukesh in an accident on 24.09.20007. Para 82 of the judgment referred to above gives a clear illustration for calculation of compensation and may be beneficially quoted.
" There is no case for any higher consideration. The death had occurred on 24.09.2007 and therefore, the CII for the financial year 2007-2008 (i.e. 551) would apply. As the age of the deceased child will 11 years, the multiplier of 15 would be appropriate. The inflation- corrected notional income thus comes to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After deducting 1/3rd and on the multiplier of 15, the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X 15) Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the similar amount towards composite non-pecuniary damages, the total compensation payable in this case comes to Rs.5,00,000/-. Following the reasons set out in the context of the preceding cases, the rate of interest is increased to 9% p.a."Page No.119 of 313
64. It may be noticed that the present case is not a case for assessment of higher consideration in respect of deceased Master Rahul @ Honey on account of any exceptional qualifications though a certificate relating to painting competition as awarded by Bhartiya Art Education Society (Ex.PW1/2) has been filed. The death had occurred on 20.06.2007 and therefore, the CII for the financial year 2007- 2008 (i.e. 551) would apply. The age of the deceased was 12 years as per the year of birth 1994 reflected in the copy of Ration Card (Ex.PW1/1) as well as the age reflected in the postmortem report. The same is not disputed by the insurance company and the multiplier of 15 would be appropriate as applicable in cases for children in between bracket of 10 to 15 years. The inflation-corrected notional income thus comes to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After deducting 1/3rd and on the multiplier of 15, the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X
15) Rs.2,49,999/- rounded off to Rs.2,50,000/-. Adding the similar amount towards composite non-pecuniary damages, the total compensation payable in this case comes to Rs.5,00,000/-. The petitioners shall be further entitled to interest @ 9% from the date of filing of claim petition i..e. 16.08.2007 till realization.
65. On realization, both the petitioners shall be entitled to 50% of the compensation amount. Further, out of the same Rs.75,000/- each shall be released to petitioner No.1 Archana Page No.120 of 313 Rawal and petitioner No.2 Anil Rawal (parents of deceased) and remaining amount along with proportionate up-to-date interest shall be kept in five fixed deposits of equal amount in their names with a nationalized bank for a period of one year, two years, three years, four years and five years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in their respective accounts.
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66. CASE-J Suit No.325/11 Unique Case ID No.02401C-1465172008
1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Father)
2. Baby Diksha D/o Surinder Nijhawan, (Sister)
3. Master Akshay Nijhawan S/o Surinder Nijhawan, (Brother) (Petitioner No.2 & 3 being minor through their natural guardian/father Sh.Surinder Nijhawan) Versus Raj Singh @ Nasir Ali & Ors.
In brief, Baby Dolly aged about 16 years (wrongly typed as 13 years in the petition) was travelling in bus no.DL 1PC 7676 along with her parents on a pilgrimage since 17.06.2007 and received fatal injuries in the accident on 20.06.2007. Petitioner no.1 is father of deceased and petitioner no.2 & 3 are the minor sister and brother of the deceased who were aged about 15 and 09 years at the time of filing of claim petition. Petitioner No.1 and 3 also received injuries in the accident while mother of the deceased Smt. Barkha Nijhawan Page No.121 of 313 expired in the accident. Compensation is claimed for Rs.15,00,000/-.
67. On the pleadings of the parties, following issues were framed for consideration vide order dated 07.04.2008 by ld. Predecessor:-
(i) Whether the deceased Late Baby Dolly had sustained fatal injuries on 20.06.2007 at about 11:00 p.m. at Bamukan Kentchi More, Police Station Dharmshala, HP due to rash and negligent driving of respondent no.1 Sh.Nazir Ali @ Raj Singh while driving bus bearing registration no.DL-1 PC-7676?
(ii) Whether the petitioners are entitled to any compensation? If so to what amount and from whom?
(iii) Relief.
68. In support of the claim common evidence of Surender Nijhwan was led as PW1, as placed in Suit No.324/11. He testified in respect of the accidental injuries received by him (in Suit No.324/11), injuries received by his son Master Akshay (in Suit No.323/11), fatal injuries received by his daughter Baby Dolly (in present Suit No.325/11) and fatal injuries received by his wife Smt. Barkha Nijhawan (in Suit No.322/11).
Page No.122 of 313PW1 Surender Nijhwan testified that he had filed separate petitions in respect of death of his wife Late Smt. Barkha Nijhwan, daughter Late Baby Dolly and in respect of injuries suffered by him and his son Master Akshay. He further testified that on 20.06.2007 they were travelling in bus no.DL 1 PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007. The bus was driven by respondent no.1 at a high speed in a rash and negligent manner in hilly area despite being warned by the passengers. Consequent to the accident Barkha Nijhwan and Baby Dolly suffered fatal injures while he along with Master Akshay suffered grievous injuries.
He further testified that Barkha Nijhwan aged about 35 years was self employed and earning about Rs.6,000/- per month as she was running lady boutique-cum-parlour at 122, Subhash Nagar, Delhi.
He further testified that deceased Baby Dolly was a good student and used to attain good percentage of marks.
He further testified that Master Akshay suffered grievous injuries in the accident and after being initially taken to RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was shifted to PGI, Chandigarh and discharged on 29.06.2007. Further he was under treatment at Appollo Hospital as his left side was paralysed.
He further testified that PW1 sustained severe injuries and was discharged on 22.06.2007 from Dr.RPGMC Hospital to perform last rites of his wife and daughter. Further he was proprietor of Neelam Digital Photo Studio and earning about Rs.10,000/- per month.
Page No.123 of 313He further relied upon documents Ex.PW1/1 to PW1/17 filed along with affidavit i.e. his medical bills (Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card (Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death certificate of both deceased (Ex.PW1/5), education papers of both deceased (Ex.PW1/6), medical bills of treatment of Master Akshay (Ex.PW1/7-collectively), prescription and treatment record and hospital record of Master Akshay (Ex.PW1/8), his Election I-card and Election I-card of deceased Barkha (Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent (Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007. PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan (Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested insurance policy, registration certificate, driving licence of driver of bus (Ex.PW1/16) , MLC of Master Akshay (Ex.PW1/17).
On cross-examination on behalf of respondent no.3 he deposed that tour was organised by Sh.Baldev Ahuja and there were 23 adults and six children travelling in the bus. He was sitting on the front side and awake at the time of accident. He denied that the owner of the bus contrary to the terms of permit was carrying more passengers than the capacity of the bus. He further deposed that the bus was driven at a high speed and the driver was warned by a passenger sitting ahead of them to drive slowly. He had no other document except the Voter's Card to show the age of his wife. Further he had not placed any document to show income, profession as well as educational Page No.124 of 313 qualification of his wife.
He admitted that he had not filed any document to show that his son Akshay could not study and had been further advised rest as mentioned in the affidavit. Further there was no specific document from any doctor to show that Master Akshay is not well to perform any work.
He further stated that he did not have any document to show his employment and income.
69. Issue No. (ii) Whether the petitioners are entitled to any compensation? If so to what amount and from whom?
The method of calculation of compensation in accident claim cases involving death of children in Motor Vehicles Accident has been clarified in MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram along with fifteen other appeals decided by Hon'ble Mr. Justice R.K.Gauba on 13.05.2016 which have been quoted earlier in para 62 and are not repeated herein for sake of brevity.
70. It may further be observed that MAC Appeal No.175/2014 decided along with MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram (supra) involved death of a 17 years old child namely Hussain Haider in an accident on 17.07.2010. In the aforesaid case, the appeal presented by the insurance company which had been fastened with the liability to Page No.125 of 313 pay the compensation assailed the judgment of the tribunal pronounced on 31.10.2013 whereby compensation in the sum of Rs.12,02,075/- was awarded in favour of the claimants. The amount of compensation awarded included Rs.4,88,248/- towards medical expenses, the compensation towards loss of dependency and other non-pecuniary heads being in the sum of Rs.7,13,827/-. It was conceded at the time of hearing that the child was born on 02.05.1993 and thus at the time of his death on 17.07.2010, he was a little over 17 years in age. The tribunal calculated the loss of dependency assuming the income of the deceased at Rs.6,448/- adopting the minimum wages of a matriculate and applying the multiplier of 13, going by the age of the mother (46 years).
However, the Hon'ble High Court in appeal in para 91, assessed the compensation as follows:
"91. Since the death occurred on 17.07.2010, the CII for the financial year 2010-2011 would apply (i.e. 711). Therefore, the notional income comes to (Rs.15,000/- x 711/331) Rs.32,220/-, rounded off to Rs.33,000/-. After deducting 1/3 rd towards personal and living expenses and applying the multiplier of 18, the pecuniary loss to estate comes to (Rs.33,000 x 2/3 x 18) Rs.3,96,000/-. Adding an equivalent amount towards composite non-pecuniary damages and Rs.4,88,248/-incurred as medical expenses, the total compensation in the case comes to Rs.12,80,248/-, rounded off to Rs.12,81,000/-. Thus, the compensation is accordingly enhanced. It shall carry interest as levied by the tribunal. The balance lying in deposit made by the insurer in terms of the interim order shall be released to the claimants. The insurer shall deposit the balance of its liability under the modified award with the tribunal within 30 days of this judgment making it available to be released to the claimants."
Further, MAC Appeal No.100/2013 decided along with MAC Appeal No.554/10 Chetan Malhotra vs. Lala Ram Page No.126 of 313 (supra) involved death of a 17 years old child namely Mohd. Asif in an accident on 14.05.2011. The assessment was made by Hon'ble High Court in para 95 as follows:
"95. The death having occurred on 14.05.2011, the calculations with regard to the annual loss to estate would be same as in the preceding case (i.e. 24,000/-). Since the deceased was 17 years old, the multiplier of 18 would apply. Therefore, the total pecuniary loss to estate is calculated as ( 24,000/- x 18) 4,32,000/-. Adding an equivalent amount towards composite non-pecuniary damages, the total compensation payable in this case comes to ( 4,32,000/- x 2) 8,64,000/-. As in the earlier cases, the rate of interest is increased to 9% p.a. The award is modified accordingly. The insurer is directed to deposit the requisite amount under the modified award within 30 days. The tribunal shall release it accordingly to the claimants."
71. It may be noticed that the instant case is not a case for assessment of higher consideration in respect of deceased Baby Dolly on account of any exceptional qualifications. The death of deceased had occurred on 20.06.2007 and therefore, the CII for the financial year 2007-2008 (i.e. 551) would apply. As the age of the deceased was 16 years 01 month on the date of accident as per the date of birth 23.04.1991 reflected in the 10 th class certificate (Ex.PW1/6) though the same was mentioned as 13 years in the petition. The multiplier of 18 would be applicable. The inflation-corrected notional income thus comes to (Rs.15,000/- X 551/331) Rs.24,969/-, rounded off to Rs.25,000/-. After deducting 1/3rd and on the multiplier of 18, the pecuniary loss to estate is computed as (Rs.25,000/-X 2/3 X
18) Rs.3,00,000/-. Adding the similar amount towards composite non-pecuniary damages, the total compensation Page No.127 of 313 payable in this case comes to Rs.6,00,000/-. The petitioners shall be further entitled to interest @ 9% from the date of filing of claim petition i..e. 16.08.2007 till realization.
72. For purpose of disbursement, petitioner no.1 shall be entitled to Rs.3,00,000 with upto date proportionate interest and petitioner no.2 and 3 minor brother and sister of the deceased shall be entitled to Rs.1,50,000/-each with upto date proportionate interest.
On realization, 20% shall be released to petitioner no.1 Surender Nijhwan (father of deceased) and remaining 80% along with proportionate up-to-date interest shall be kept in seven fixed deposits of equal amount in his name with a nationalized bank for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
Amount of the share of petitioner no.2 and 3 shall be fixed deposited with a nationalized bank till they attain the age of 21 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in favour of petitioner no.1 Surinder Nijhawan (father) for the benefits of minors.
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73. CASE-K Suit No.322/11 Page No.128 of 313 Unique Case ID No.02401C-1465112008
1. Surinder Nijhawan S/o Lt. Sh.Krishan Lal, (Husband)
2. Baby Diksha D/o Surinder Nijhawan, (Daughter)
3. Master Akshay Nijhawan S/o Surinder Nijhawan (Son) (Petitioner No.2 & 3 being minor through their natural guardian/father Sh.Surinder Nijhawan) Versus Raj Singh @ Nasir Ali & Ors.
In brief, Smt. Barkha Nijhawan aged about 35 years (wife of petitioner no.1) was travelling in bus no.DL 1PC 7676 along with her husband Shri Surinder Nijhawan and kids on a pilgrimage since 17.06.2007 and received fatal injuries in the accident on 20.06.2007. Petitioner no.1 is the husband of deceased and petitioner no.2 & 3 are the minor daughter and son of the deceased who were aged about 15 and 09 years at the time of filing of claim petition. Baby Dolly daughter of petitioner no.1 also expired in the accident while petitioner No.1 Surinder Nijhawan and petitioner No.3 Master Akshay Nijhawan sustained injuries in the accident. It is further the case of petitioner that the deceased was running a ladies boutique and earning about Rs.6,000/- per month. Compensation is accordingly claimed for Rs.20,00,000/-.
74. On the pleadings of the parties, following issues were framed for consideration vide order dated 11.02.2008 by ld. Predecessor:-
(i) Whether the deceased Barkha Nijhawan Page No.129 of 313 had sustained fatal injuries on 20.06.2007 at about 11:00PM at Bamukan Kentchi More, Police Stattion Dharmshala, HP due to rash and negligent driving of respondent no.1 Sh.Nasir Ali @ Raj Singh while driving bus bearing registration no.DL 1 PC 7676?
(ii) Whether the petitioners are entitled to any compensation? If so to what amount and from whom?
(iii) Relief.
75. In support of the claim petition common evidence of Surinder Nijhwan was led as PW1 as placed in Suit No.324/11. He testified in respect of the accidental injuries received by him (in Suit No.324/11), injuries received by his son Master Akshay (in Suit No.323/11), fatal injuries received by his daughter Baby Dolly (in Suit No.325/11) and fatal injuries received by his wife Smt. Barkha Nijhawan (in present Suit No.322/11).
PW1 Surender Nijhwan testified that he had filed separate petitions in respect of death of his wife Late Smt. Barkha Nijhwan, daughter Late Baby Dolly and in respect of injuries suffered by him and his son Master Akshay. He further testified that on 20.06.2007 they were travelling in bus no.DL 1 PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007. The bus was driven by respondent no.1 at a high speed in a rash Page No.130 of 313 and negligent manner in hilly area despite being warned by the passengers. Consequent to the accident Barkha Nijhwan and Baby Dolly suffered fatal injures while he along with Master Akshay suffered grievous injuries.
He further testified that Barkhas Nijhwan aged about 35 years was self employed and earning about Rs.6,000/- per month as she was running lady boutique cum parlor at 122, Subhash Nagar, Delhi.
He further testified that deceased Baby Dolly was a good student and used to attain good percentage of marks.
He further testified that Master Akshay suffered grievous injuries in the accident and after being initially taken to RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was shifted to PGI, Chandigarh and discharged on 29.06.2007. Further he was under treatment at Appollo Hospital as his left side was paralysed.
He further testified that PW1 himself sustained severe injuries and was discharged on 22.06.2007 from Dr.RPGMC Hospital to perform last rites of his wife and daughter. Further he was proprietor of Neelam Digital Photo Studio and earning about Rs.10,000/- per month. He further relied upon documents Ex.PW1/1 to PW1/17 filed along with affidavit i.e. his medical bills (Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card (Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death certificate of both deceased (Ex.PW1/5), education papers of both deceased (Ex.PW1/6), medical bills of treatment of Master Akshay (Ex.PW1/7- collectively), prescription and treatment record and hospital Page No.131 of 313 record of Master Akshay (Ex.PW1/8), his Election I-card and Election I-card of deceased Barkha (Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent (Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007. PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan (Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested insurance policy, registration certificate, driving licence of driver of bus (Ex.PW1/16) , MLC of Master Akshay (Ex.PW1/17).
On cross-examination on behalf of respondent no.3 he deposed that tour was organised by Sh.Baldev Ahuja and there were 23 adults and six children travelling in the bus. He was sitting on the front side and awake at the time of accident. He denied that the owner of the bus contrary to the terms of permit was carrying more passengers than the capacity of the bus. He further deposed that the bus was driven at a high speed and the driver was warned by a passenger sitting ahead of them to drive slowly. He had no other document except the Voter's Card to show the age of his wife. Further he had not placed any document to show income, profession as well as educational qualification of his wife.
He admitted that he had not filed any document to show that his son Akshay could not study and had been further advised rest as mentioned in the affidavit. Further there was no specific document from any doctor to show that Master Akshay is not well to perform any work.
He further stated that he did not have any document to show his employment and income.
Page No.132 of 31376. Issue No. (ii) Whether the petitioners are entitled to any compensation? If so to what amount and from whom?
Counsel for petitioners contended that the income of the deceased be assessed at Rs.6,000/- per month as she was self-employed and running a boutique.
However, the same was opposed by counsel for Insurance Company and it was urged that the income be assessed on the basis of minimum wages of a unskilled labourer.
Admittedly in the present case no documentary evidence has been filed by the petitioners to prove that the deceased was running a boutique as claimed. Neither any evidence has been led to show in case any products for running the boutique were purchased by the deceased, nor any other documents have been produced to infer that the deceased was running the business and earning about Rs.6,000/- per month. In view of above the bald statement of petitioner cannot be accepted that the deceased was earning Rs.6,000/- per month. In the facts and circumstances, I am inclined to assess the compensation on the basis of gratuitous services rendered as a homemaker which are more beneficial to the petitioners than assessing the compensation on minimum wages of a skilled worker for the relevant period.
77. The principles to assess the value of services Page No.133 of 313 rendered by a homemaker so as to calculate the loss of dependency in case of death in road accident as summed up in para 34 of Royal Sundaram Alliance Insurance Co. Ltd. vs. Manmeet Singh & Others 2012 ACJ 721 may be quoted:
"34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-
(i)Minimum salary of a Graduate where she is a Graduate.
(ii)Minimum salary of a Matriculate where she is a Matriculate.
(iii)Minimum salary of a non-Matriculate in other cases.
(iv)There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v)When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi)If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband‟s re-marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii)There shall not be any deduction towards the personal and living expenses.
(viii)As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs.25,000/- (on present scale of the money value) towards loss of love and affection and Rs. 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
Page No.134 of 313Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate."
78. In the present case, no document regarding the educational qualification of deceased has been brought to my notice. Since the deceased was a housewife, the compensation has to be assessed on the basis of notional income of a non- matriculate as per the principles laid out in the case of Royal Sundaram Alliance Insurance Co. Ltd. vs. Manmeet Singh & Others (supra). The minimum wages of a non matriculate as on 20.06.2007 were Rs.3,663/- per month. Further, an addition of 25% is required to be made as per the principles laid down in the aforesaid judgment. The notional income of the deceased for the purpose of assessment of compensation is accordingly considered as Rs.4,578.75 per month {Rs.3,663/- (minimum wages of non matriculate as on 20.06.2007) plus Rs.915.75 (25% addition of assumed income).
Selection of multiplier:
PW-1 Surender Nijhawan (husband of deceased) testified that the deceased was aged about 35 years and further proved the Ration Card (Ex.PW1/3) issued on 20.04.2005 wherein year of birth of deceased is reflected as 1972. In view of above the age of the deceased as on 20.06.2007 was above 35 years. As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the relevant multiplier of 15 is applicable for purpose of assessment.Page No.135 of 313
There shall not be any deduction towards personal and living expenses as per principles laid down in Royal Sundram (Supra).
The loss of dependency accordingly works out to Rs.8,24,175/- { Rs.3,663/- (minimum wages of non matriculate as on 20.06.2007) plus Rs.915.75 (25% addition of assumed income)x 12 x 15 (multiplier)}.
79. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
There cannot be any discrimination in compensation under the non-pecuniary heads in case of death of wife or husband relating to the heads of loss of consortium, loss of love and affection and funeral expenses. It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium. Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. Reference may also be made to MAC Appeal No.1036/12 HDFC Ergo General Insurance Company Ltd. vs. Bablu Sahani decided by Hon'ble Mr. Justice G.P.Mittal 03.03.2015, wherein the aforesaid amount was awarded towards Page No.136 of 313 compensation in case of death of a homemaker.
Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances petitioner no.1 is entitled to Rs.1 lakh for loss of consortium. Petitioners are further entitled to Rs.1 lakh towards loss of love and affection and Rs.25,000/- towards funeral expenses of deceased. Since deceased was a homemaker, no amount is awarded towards loss of estate as held in Royal Sundram (supra).
80. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.8,24,175/- Loss of love and affection Rs.1,00,000/- Loss of consortium to husband Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.10,49,175/-
___________
(Rupees Ten Lakh Forty Nine Thousand One Hundred & Seventy Five Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of claim petition w.e.f. 16.08.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
Page No.137 of 31381. For purpose of disbursement, petitioner no.1 Surender Nijhwan (husband of deceased) shall be entitled to 60% and petitioner petitioner No.2 Baby and petitioner No.3 Master Akshay (children of the deceased) shall be entitled to 20% each of the award amount along with proportionate up-to- date interest.
On realization, out of the share of petitioner no.1, Rs.1,00,000/- shall be released to the petitioner and remaining amount shall be kept in seven fixed deposits of equal amount in his name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
The share of petitioner no.2 and 3 (children of the deceased) shall be put in fixed deposit in their respective names till they attain the age of 21 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the account of petitioner No.1 Surinder Nijhawan (father) for the benefit of minors.
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82. CASE-L Suit No.324/11 Unique Case ID No.02401C-1465132008 Surinder Nijhawan S/o Late Sh.Krishan Lal, Page No.138 of 313 Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner was travelling in bus no.DL 1PC 7676 along with his wife Smt. Barkha Nijhawan, daughter Baby Dolly and son Master Akshay on a pilgrimage since 17.06.2007 and received grievous injuries in the accident on 20.06.2007. Wife of petitioner namely Barkha Nijhawan and daughter Baby Dolly received fatal injuries in the accident while Master Akshay suffered grievous injuries. Petitioner was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP on 20.06.2007 after the accident and was discharged on 22.06.2007. It is further the case of petitioner that he was running a Photo Studio, at Hari Nagar, Delhi and earning Rs.10,000/- per month. Compensation is claimed for a sum of Rs.5,00,000/-.
83. On the pleadings of the parties, following issues were framed for consideration vide order dated 07.04.2008 by ld. Predecessor:-
(i) Whether the petitioner had sustained injuries on 20.06.2007 at about 11:00PM at Kentchi More, Police Station Dharmshala, HP due to rash and negligent driving of respondent no.1 while driving vehicle No.DL 1 PC 7676?
(ii) Whether the petitioner is entitled to any compensation? If so to what amount and from Page No.139 of 313 whom?
(iii) Relief.
84. In support of the claim petition common evidence of Surender Nijhwan was led as PW1 as placed in Suit No.324/11. He testified in respect of the accidental injuries received by him (in present Suit No.324/11), injuries received by his son Master Akshay (in Suit No.323/11), fatal injuries received by his daughter Baby Dolly (in Suit No.325/11) and fatal injuries received by his wife Smt. Barkha Nijhawan (in Suit No.322/11).
PW1 Surinder Nijhwan testified that he had filed separate petitions in respect of death of his wife Late Smt. Barkha Nijhwan, daughter Late Baby Dolly and in respect of injuries suffered by him and his son Master Akshay. He further testified that on 20.06.2007 they were travelling in bus no.DL 1 PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007. The bus was driven by respondent no.1 at a high speed in a rash and negligent manner in hilly area despite being warned by the passengers. Consequent to the accident Barkha Nijhwan and Baby Dolly suffered fatal injures while he along with Master Akshay suffered grievous injuries.
He further testified that Barkhas Nijhwan aged about 35 years was self employed and earning about Rs.6,000/- per month as she was running lady boutique cum parlor at 122, Subhash Nagar, Delhi.
He further testified that deceased Baby Dolly was a Page No.140 of 313 good student and used to attain good percentage of marks.
He further testified that Master Akshay suffered grievous injuries in the accident and after being initially taken to RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was shifted to PGI, Chandigarh and discharged on 29.06.2007. Further he was under treatment at Apollo Hospital as his left side was paralyzed.
He further testified that PW1 himself sustained severe injuries and was discharged on 22.06.2007 from Dr.RPGMC Hospital to perform last rites of his wife and daughter. Further he was proprietor of Neelam Digital Photo Studio and earning about Rs.10,000/- per month. He further relied upon documents Ex.PW1/1 to PW1/17 filed along with affidavit i.e. his medical bills (Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card (Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death certificate of both deceased (Ex.PW1/5), education papers of both deceased (Ex.PW1/6), medical bills of treatment of Master Akshay (Ex.PW1/7-collectively), prescription and treatment record and hospital record of Master Akshay (Ex.PW1/8), his Election I-card and Election I-card of deceased Barkha (Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent (Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007. PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan (Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested insurance policy, registration certificate, driving licence of driver of bus (Ex.PW1/16) , MLC of Master Akshay (Ex.PW1/17).
Page No.141 of 313On cross-examination on behalf of respondent no.3 he deposed that tour was organised by Sh.Baldev Ahuja and there were 23 adults and six children travelling in the bus. He was sitting on the front side and awake at the time of accident. He denied that the owner of the bus contrary to the terms of permit was carrying more passengers than the capacity of the bus. He further deposed that the bus was driven at a high speed and the driver was warned by a passenger sitting ahead of them to drive slowly. He had no other document except the Voter's Card to show the age of his wife. Further he had not placed any document to show income, profession as well as educational qualification of his wife.
He admitted that he had not filed any document to show that his son Akshay could not study and had been further advised rest as mentioned in the affidavit. Further there was no specific document from any doctor to show that Master Akshay is not well to perform any work.
He further stated that he did not have any document to show his employment and income.
85. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement Page No.142 of 313 in the hospital and duration of the treatment are considered.
The injuries sustained by the petitioner have been described in the MLC Ex.PW1/16 as follows:
"cut injury on the scalp 7 cm in size, stitches applied. Advised X-ray skull".
Further, as per X-ray report dated 02.08.2007 of Sidharth Medi Services it was observed as under:
"Wedging of T8 vertebrae is seen suggestive of fracture T8 Psoas shadows are normal".
It may be noticed that though doctor has not been examined to prove the nature of injuries but the medical documents relied by the petitioner reflect suggestive fracture of T8 vertebrae as observed above. It also needs to be considered that the petitioner was under immense trauma due to loss of his wife and daughter and his son had also suffered grievous injuries, who had to be looked after. Considering the nature of injuries and the treatment papers, the period for which the petitioner may not have been able to work on account of injuries sustained by him may be assumed as four months.
Since no cogent evidence has been led regarding the income of the petitioner, the same may be assessed on notional basis as notified by the Government of NCT of Delhi @ Rs.3,894/-per month for a skilled worker since the petitioner was running a photo studio.
Petitioner is accordingly awarded a sum of Page No.143 of 313 Rs.15,576/- (Rs.3,894/- X 04 months) towards loss of income on account of injuries sustained in the accident.
86. Pain and suffering Considering the nature of injuries suffered by petitioner, he is awarded compensation of Rs.40,000/- (Rupees Forty Thousand only) towards pain and suffering.
87. Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.969/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.969/- towards medical bills/treatment.
88. Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount during the period of treatment as well as on account of being shifted from District Kangra to Delhi. In view of above, an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) is awarded towards conveyance.
Petitioner is further awarded an amount of Rs.15,000/- (Rupees Fifteen Thousand Only) towards special diet.
Page No.144 of 31389. Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. The period of active treatment wherein the petitioner must have required the care and services on account of suggestive fracture suffered of T8 vertebrae has to be assumed for a period of four months. Considering the nature of injuries and period of treatment, compensation of Rs.12,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.3,000/- X 4 months).
90. As discussed above, the overall compensation is tabulated as under:
Loss of income Rs.15,576/-
Pain and suffering Rs.40,000/-
Special Diet Rs.15,000/-
conveyance Rs.15,000/-
Medical Bills Rs.969/-
Attendant Charges Rs.12,000/-
Page No.145 of 313
___________
Total Rs.98,545/-
________________
(Rupees Ninety Eight Thous and Five Hundred and Forty Five Only) Petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i..e. 16.08.2007 till realization.
91. On realization, 40% of the compensation amount shall be released to the petitioner while the remaining amount along with proportionate up-to-date interest shall be kept in fixed deposit in the name of petitioner with a nationalized bank for a period of three years (03 years) without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in his account.
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92. CASE-M Suit No.323/11 Unique Case ID No.02401C-1465122008 Surinder Nijhawan, guardian/father of Master Akshay Versus Raj Singh @ Nasir Ali & Ors.
In brief, Master Akshay (a student) aged about 09 years was travelling in bus no.DL 1PC 7676 along with his parents and sister Baby Dolly on a pilgrimage since 17.06.2007 Page No.146 of 313 and received grievous injuries in the accident on 20.06.2007. Mother of petitioner namely (Smt. Barkha Nijhawan) and his sister (Baby Dolly) suffered fatal injuries in the accident while his father Shri Surinder Nijhawan sustained severe injuries. Master Akshay was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP on 20.06.2016 after the accident and was thereafter shifted to PGI Chandigarh on the same day considering the grievous nature of injuries. Thereafter, he was treated at Apollo Hospital, Delhi. It is further the case of petitioner that a sum of Rs.2,00,000/- was incurred till filing of petition and the studies of Master Akshay were also adversely affected due to injuries suffered in the accident. Compensation is accordingly claimed for sum of Rs.10,00,000/-.
93. On the pleadings of the parties, following issues were framed for consideration vide order dated 07.04.2008 by ld. Predecessor:-
(i) Whether the petitioner had sustained injuries on 20.06.2007 at about 11:00PM at Kentchi More, Police Stattion Dharmshala, HP due to rash and negligent driving of respondent no.1 while driving vehicle No.DL 1 PC 7676?
(ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?Page No.147 of 313
(iii) Relief.
94. In support of the claim petition common evidence of Surender Nijhwan was led as PW1 as placed in Suit No.324/11. He testified in respect of the accidental injuries received by him (in Suit No.324/11), injuries received by his son Master Akshay (in present Suit No.323/11), fatal injuries received by his daughter Baby Dolly (in Suit No.325/11) and fatal injuries received by his wife Smt. Barkha Nijhawan (in Suit No.322/11).
PW1 Surender Nijhawan testified that he had filed separate petitions in respect of death of his wife Late Smt. Barkha Nijhawan, daughter Late Baby Dolly and in respect of injuries suffered by him and his son Master Akshay. He further testified that on 20.06.2007 they were travelling in bus no.DL 1 PC 7676 on pilgrimage in Himachal Pradesh since 17.06.2007. The bus was driven by respondent no.1 at a high speed in a rash and negligent manner in hilly area despite being warned by the passengers. Consequent to the accident Barkha Nijhwan and Baby Dolly suffered fatal injures while he along with Master Akshay suffered grievous injuries.
He further testified that Barkha Nijhwan aged about 35 years was self employed and earning about Rs.6,000/- per month as she was running lady boutique cum parlor at 122, Subhash Nagar, Delhi.
He further testified that deceased Baby Dolly was a good student and used to attain good percentage of marks.
He further testified that Master Akshay suffered Page No.148 of 313 grievous injuries in the accident and after being initially taken to RPGMC Hospital, Tanda, District Kangra on 20.06.2007 was shifted to PGI, Chandigarh and discharged on 29.06.2007. Further he was under treatment at Appollo Hospital as his left side was paralysed.
He further testified that PW1 also sustained severe injuries and was discharged on 22.06.2007 from Dr.RPGMC Hospital to perform last rites of his wife and daughter. Further he was proprietor of Neelam Digital Photo Studio and earning about Rs.10,000/- per month.
He further relied upon documents Ex.PW1/1 to PW1/17 filed along with affidavit i.e. his medical bills (Ex.PW1/1), prescriptions (Ex.PW1/2), Ration card (Ex.PW1/3), burial receipt of both deceased (Ex.PW1/4), death certificate of both deceased (Ex.PW1/5), education papers of both deceased (Ex.PW1/6), medical bills of treatment of Master Akshay (Ex.PW1/7-collectively), prescription and treatment record and hospital record of Master Akshay (Ex.PW1/8), his Election I-card and Election I-card of deceased Barkha (Ex.PW/9), MLC of Akshay (Ex.PW1/10), MLC of deponent (Ex.PW1/11), attested copy of FIR No.125/07 dated 21.06.2007. PS Dharamshala, HP (Ex.PW1/12), postmortem report of Baby Dolly (Ex.PW1/13), postmortem report of Barkha Nijhawan (Ex.PW1/14), MLC of Barkha Nijhawan (Ex.PW1/15), attested insurance policy, registration certificate, driving licence of driver of bus (Ex.PW1/16) , MLC of Master Akshay (Ex.PW1/17).
On cross-examination on behalf of respondent no.3 Page No.149 of 313 he deposed that tour was organised by Sh.Baldev Ahuja and there were 23 adults and six children travelling in the bus. He was sitting on the front side and awake at the time of accident. He denied that the owner of the bus contrary to the terms of permit was carrying more passengers than the capacity of the bus. He further deposed that the bus was driven at a high speed and the driver was warned by a passenger sitting ahead of them to drive slowly. He had no other document except the Voter's Card to show the age of his wife. Further he had not placed any document to show income, profession as well as educational qualification of his wife.
He admitted that he had not filed any document to show that his son Akshay could not study and had been further advised rest as mentioned in the affidavit. Further there was no specific document from any doctor to show that Master Akshay is not well to perform any work.
He further stated that he did not have any document to show his employment and income.
95. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the Page No.150 of 313 treatment are considered.
The injuries sustained by Master Akshay have been described in the MLC Ex.PW1/17 as follows:
"crush injury on right side of scalp 5 X 5 cm and lacerated wound on left forearm % X 6 cm in size".
Master Akshay was further referred to PGI, Chandigarh wherein the discharge summary Ex.PW1/8 reflects that he was admitted on 24.06.2007 and discharged on 29.06.2007 from Department of Neurosurgery. The final diagnosis further reflects bifrontal small contusion with # frontal bone. The brief history and clinical findings also refer to # clavicle. Master Akshay also appears to have further undergone treatment as a follow-up case at Brain and Spine Clinic, Kirti Nagar, New Delhi and prescription upto 23.06.2009 have been filed on record.
However, it may be noticed that neither any doctor has been examined nor there is any evidence regarding any permanent disability suffered by Master Akshay. Considering the grievous nature of injuries suffered by Master Akshay wherein the follow-up treatment has continued for considerable period, he is awarded compensation of Rs.1,00,000/- (Rupees One Lac only) towards pain and suffering and injuries sustained in the accident.
Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.18,708.25 has been claimed towards the medical Page No.151 of 313 bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.18,708/- towards medical bills/treatment.
Conveyance & Special Diet Though no conveyance bills have not been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount during the period of treatment as he was shifted to PGI, Chandigarh from District Kangra and thereafter shifted to Delhi. In view of above, an amount of Rs.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance for the period of treatment.
Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet considering the period of treatment and nature of injuries.
Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family Page No.152 of 313 members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. The period of active treatment wherein the petitioner must have required the continuous care and services has to be assumed for a period of six months though the petitioner undertook follow-up treatment till 2009. Considering the nature of injuries, period of treatment and the fact that the mother of petitioner had expired in the same accident and father had also sustained injuries, the compensation of Rs.18,000/- is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.3,000/- X 6 months).
Loss of Academics Though there is no specific evidence regarding loss of academic year but definitely the studies of the petitioner had been adversely affected due to extensive injuries sustained in the accident. Petitioner is accordingly awarded a sum of Rs.30,000/- for loss of studies.
96. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.1,00,000/-
Special Diet Rs.20,000/-
conveyance Rs.20,000/-
Medical Bills Rs.18,708/-
Attendant Charges Rs.18,000/-
Loss of academics Rs.30,000/-
___________
Total Rs.2,06,708/-
_________________
(Rupees Two Lakh Six Thousand Seven Hundred and Eight Only) Page No.153 of 313 The petitioners shall be further entitled to interest @ 9% from the date of filing of claim petition i..e. 16.08.2007 till realization.
97. On realization, considering the medical expenses incurred by the father of injured, 30% of the compensation amount shall be released to the father of the injured for the benefit and welfare of the minor son and the remaining amount along with proportionate up-to-date interest shall be kept in fixed deposit in the name of petitioner with a nationalized bank till he attains the age of 21 years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in the bank account of Surinder Nijhawan (father) for the benefit of minor.
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98. CASE-N Suit No.280/11 Unique Case ID No.02401C-1465202008 Satish Kumar Nijhawan, guardian/father of Baby Bhawna (minor) Versus Raj Singh @ Nasir Ali & Ors.
In brief, Baby Bhawna (a student )aged about 13 years was travelling in bus no.DL 1PC 7676 along with her uncle on a pilgrimage since 17.06.2007 and received grievous Page No.154 of 313 injuries in the accident on 20.06.2007. She was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP on 20.06.2016 after the accident and was thereafter shifted to PGI Chandigarh on the same day considering the grievous nature of injuries and was discharged on 27.06.2007. It is further claimed that thereafter petitioner was treated at Delhi and a sum of Rs.1,00,000/- had been incurred till filing of petition. The studies of the petitioner are also stated to have been adversely affected due to injuries suffered in the accident and compensation is claimed for sum of Rs.10,00,000/-.
99. On the pleadings of the parties, following issues were framed for consideration vide order dated 07.04.2008 by ld. Predecessor:-
(i) Whether the petitioner had sustained injuries on 20.06.2007 at about 11:00PM, Kentchi More, Police Station Dharmshala, HP due to rash and negligent driving of respondent no.1 while driving vehicle no.DL 1 PC 7676?
(ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
(iii) Relief.
100. In support of the claim petition, PW1 Satish Kumar Page No.155 of 313 was examined.
PW1 Satish Kumar testified on the lines of claim petition and proved medical bills (Ex.PW1/1-collectively 17 pages), original medical treatment record (Ex.PW1/2- collectively 15 sheets), copy of further medical treatment record (Mark-A and Mark-B), copy of Ration Card (Ex.PW1/3), attested copy of MLC (Ex.PW1/4) and attested copy of FIR (Ex.PW1/5).
On cross-examination, PW1 deposed that his daughter was travelling with his elder brother and was aged about 12 years at the time of accident.
101. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
The injuries sustained by the petitioner have been described in the MLC Ex.PW1/4 as follows:
"# right femur.
# left femur # Tibia"
Baby Bhawna was further referred to PGI, Page No.156 of 313 Chandigarh wherein the discharge summary collectively Mark- B reflects that she was admitted on 21.06.2007 and discharged on 27.06.2007. PW1 also placed the treatment documents with regard to further medical treatment at Delhi till November 2008.
It may be noticed that neither any doctor has been examined nor there is any evidence regarding any permanent disability suffered by Baby Bhawna. Considering the grievous nature of injuries suffered by Baby Bhawna wherein the follow- up treatment has continued for considerable period petitioner is awarded compensation of Rs.1,00,000/- (Rupees One Lac only) towards pain and suffering and injuries sustained in the accident.
Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.29,660/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.29,660/- towards medical bills/treatment.
Conveyance & Special Diet Though conveyance bills have not been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount during the period of treatment as she was shifted to PGI, Chandigarh from District Kangra and thereafter to Delhi. In view of above, an amount of Rs.20,000/- (Rupees Fifteen Thousand Only) is awarded towards conveyance for the period of treatment.
Page No.157 of 313Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet considering the period of treatment and nature of injuries.
Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. The period of active treatment wherein the petitioner must have required the continuous care and services has to be assumed for a period of one year though the petitioner remained under some treatment on follow-up till November 2008. Considering the nature of injuries, period of treatment, the compensation of Rs.36,000/- is awarded in lump- sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.3,000/- X 12 months).
Loss of Academics Though there is no specific evidence regarding loss of academic year but definitely the studies of the petitioner have Page No.158 of 313 been adversely affected due to extensive injuries sustained in the accident. Petitioner is accordingly awarded a sum of Rs.30,000/- for loss of studies.
102. As discussed above, the overall compensation is tabulated as under:
Pain and suffering Rs.1,00,000/-
Special Diet Rs.20,000/-
conveyance Rs.20,000/-
Medical Bills Rs.29,660/-
Attendant Charges Rs.36,000/-
Loss of academics Rs.30,000/-
___________
Total Rs.2,35,660/-
________________
(Rupees Two Lakh Thirty Five Thousand Six Hundred & Sixty Only) The petitioner shall be further entitled to interest @ 9% from the date of filing of claim petition i..e. 16.08.2007 till realization.
103. On realization, considering the medical expenses incurred by the father of injured, 25% of the compensation amount shall be released to the father of injured for the benefit and welfare of Baby Bhawna and the remaining amount along with proportionate up-to-date interest shall be kept in fixed deposit in the name of Baby Bhawna with a nationalized bank for a period of three years (03 years) without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account as she must have Page No.159 of 313 presently attained the age of majority.
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104. CASE-O Suit No.190/11 Unique Case ID No.02401C-0819832007 Amol Bajaj S/o Rajesh Bajaj Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioner, he was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and received injuries in the accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder Prasad Medical College at Tanda District Kangra after the accident and discharged on the same day. It is further the case of petitioner that he sustained severe injuries as stated in the petition and spent a sum of Rs.40,000/- on his treatment. Compensation is accordingly claimed for Rs.5,00,000/-.
105. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor :-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Page No.160 of 313 Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
106. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Counsel for petitioner admits that evidence of the petitioner has not been led but prays that compensation be assessed on the basis of injuries as reflected in the MLC as placed on record since the fact that the petitioner was travelling in the ill-fated bus is not disputed.
107. I am of the considered view that the fact that petitioner was travelling in the bus at the time of accident stands corroborated in the light of evidence led in the connected cases on record and common evidence of PW2 ASI Mohinder Singh Page No.161 of 313 who proved the record of criminal proceedings arising out of the accident. Further, the fact that petitioner received injures in the accident cannot be disputed in view of the attested copy of MLC filed on record. In the facts and circumstances, it may not be appropriate to dismiss the claim petition for want of examination of petitioner but the compensation be assessed considering the nature of injuries as reflected in the MLC.
108. It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Admittedly, neither the medical bills towards the expenses if any incurred by the petitioner have been proved nor the petitioner entered the witness box. As per MLC prepared at Dr. Rajender Prasad Government Hospital and associated hospital, Kangara the petitioner had complained of pain in lower back but no further report on the basis of advised X-rays has been placed/proved on record. Petitioner was not admitted as an indoor patient and was discharged on the same day. However, judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also expenses must have been incurred on conveyance from Kangra to Delhi. Considering the facts and circumstances petitioner is awarded compensation of Rs.15,000/- towards pain and suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet and conveyance.
Page No.162 of 313109. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 16.08.2007 till realization.
110. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
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111. CASE-P Suit No.191/11 Unique Case ID No.02401C-0815992007 Smt. Bharti Bajaj W/o Rajesh Bajaj, Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioner, she was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and received injuries Page No.163 of 313 in the accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder Prasad Medical College, at Tanda District Kangra after the accident. It is further the case of petitioner that the she sustained severe injuries as stated in the petition and spent a sum of Rs.40,000/- on her treatment and an expense of Rs.4,000/- was incurred for employing a maid servant. Compensation is accordingly claimed for Rs.5,00,000/-.
112. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008.
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
113. Issue No. (ii) To what amount of compensation the claimants Page No.164 of 313 are entitled to and from whom?
Counsel for petitioner admits that evidence of the petitioner has not been led but prays that compensation be assessed on the basis of injuries as reflected in the MLC as placed on record since the fact that the petitioner was travelling in the ill-fated bus is not disputed.
I am of the considered view that the fact that petitioner was travelling in the bus at the time of accident stands corroborated in the light of evidence led in the connected cases on record and common evidence of PW2 ASI Mohinder Singh who proved the record of criminal proceedings arising out of the accident. Further, the fact that petitioner received simple injures in the accident cannot be disputed in view of the attested copy of MLC filed on record. In the facts and circumstances, it may not be appropriate to dismiss the claim petition for want of examination of petitioner but the compensation can be assessed considering the nature of injuries as reflected in the MLC since the same is not disputed by respondents.
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Admittedly, neither the medical bills towards the expenses, if any, incurred by the petitioner have been proved nor the petitioner entered the witness box. As per MLC prepared at Dr. Rajender Prasad Government Hospital and Associated Page No.165 of 313 Hospital, Kangara the petitioner was admitted at Ortho Ward since she was unable to move due to several back ache but no external injury was seen. It further appears as per the photocopy of documents placed on record that the petitioner got herself examined at Dr.RML Hospital, New Delhi wherein no bony injury was observed after X-Ray of pelvis. Judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also, expenses must have separately been incurred on conveyance from Kangra to Delhi and during course of treatment. Considering the facts and circumstances petitioner is awarded compensation of Rs.15,000/- towards pain and suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet and conveyance.
The petitioner has failed to enter the witness box and prove any other expenses/medical bills and as such no expenses towards medical bills/treatment are awarded.
114. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f.
Page No.166 of 31316.08.2007 till realization.
115. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
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116. CASE-Q Suit No.194/11 Unique Case ID No.02401C-0820642007 Sunny Ahuja @ Sahil Ahuja (Petitioner being minor through his natural guardian/next friend/ father Sh.Suraj Ahuja) Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner Sunny Ahuja @ Sahil was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and received injuries in the accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder Prasad Medical College at Tanda District Kangra after the accident and discharged on the same day. It is further claimed that petitioner sustained severe injuries as stated in the petition and spent a sum of Rs.10,000/- on his treatment. Compensation is claimed for Rs.5,00,000/-.
117. Vide order dated 09.01.2008 following consolidated issues were framed by the ld. Predecessor :
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained Page No.167 of 313 fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
118. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Counsel for petitioner admits that evidence of the petitioner has not been led but prays that compensation be assessed on the basis of injuries as reflected in the MLC as placed on record since the fact that the petitioner was travelling in the ill-fated bus is not disputed.
119. I am of the considered view that the fact that petitioner was travelling in the bus at the time of accident stands corroborated in the light of evidence led in the connected cases Page No.168 of 313 on record and common evidence of PW2 ASI Mohinder Singh who proved the record of criminal proceedings arising out of the accident. Further, the fact that petitioner received simple injures in the accident cannot be disputed in view of the attested copy of MLC filed on record. In the facts and circumstances, it may not be appropriate to dismiss the claim petition for want of examination of petitioner but the compensation can be assessed considering the nature of injuries as reflected in the MLC since the same is not disputed by respondents.
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
Admittedly, neither the medical bills towards the expenses, if any, incurred by the petitioner have been proved nor the petitioner entered the witness box. As per MLC prepared at Dr. Rajender Prasad Government Hospital and Associated Hospital, Kangara which is not disputed, the petitioner had sustained abrasion below right elbow about 3X4 cm in size, red in colour. Further, as per the MLC the injury over right elbow was simple in nature and no fracture was detected. Petitioner was not admitted as an indoor patient and was discharged on the same day. Judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also expenses must have been incurred on conveyance from Kangra to Delhi. Considering the facts and circumstances petitioner is awarded compensation of Rs.15,000/- towards pain and Page No.169 of 313 suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance.
120. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills -NIL-
___________
Total Rs.20,000/-
________________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 16.08.2007 till realization.
121. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner as he was a minor aged about 16 years at the time of filing of petition but has since attained majority.
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122. CASE-R Suit No.196/11 Unique Case ID No.02401C-0820012007 Saroj Ahuja W/o Sh.Suraj Ahuja Versus Raj Singh @ Nasir Ali & Ors.
Page No.170 of 313As per case of petitioner, she was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and received injuries in the accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder Prasad Medical College, at Tanda District Kangra after the accident and discharged on the same day. Further, subsequent treatment continued at Bhatia Medical Centre, Delhi. It is further the case of the petitioner that she was self employed as tutor and earning about Rs.5,000/- per month and spent a sum of Rs.20,000/- on her treatment. Compensation is accordingly claimed for Rs.5,00,000/-.
123. Vide order dated 09.01.2008 following consolidated issues were framed by the ld. Predecessor:
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no. DL 1PC 7676?Page No.171 of 313
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
124. In support of the claim, Smt. Saroj Ahuja was examined as PW1.
PW1 Smt. Saroj Ahuja testified on the lines of the claim petition and stated that the accident had been caused due to rash and negligent driving of Respondent No.1. She further testified regarding the injuries suffered in the accident and stated that a maid servant was engaged at Rs.1,000/- per month since July, 2007. She further proved the original medical bills (Ex.PW1/1 colly 2 sheets), medical record (Ex.PW1/2 colly 5 pages), her election I-card (Ex.PW1/3) and copy of MLC (Ex.PW1/4).
On cross-examination, PW1 stated that she was conscious at the time of accident but did not have any ticket to prove that she was travelling in the offending bus. She further deposed that she is a housewife and the wound on her neck had not healed.
125. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
It may be observed that for the purpose of assessment Page No.172 of 313 of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
The injuries sustained by the petitioner have been described in the MLC Ex.PW1/4 as follows:
"1. cut injury on left side of forehead, superfacial. No bleeding,.
2.Bruises on left shoulder.
3. Swelling right ankle joint. Advised X-Ray right ankle.
The final opinion was reserved to be given after surgical record summary & radiologist opinion is received."
It may be noticed that doctor has not been examined to prove the nature of injuries and the treatment record does not reflect any grievous injury. Judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also expenses must have separately been incurred on conveyance from Kangra to Delhi. Considering the facts and circumstances petitioner is awarded compensation of Rs.15,000/- towards pain and suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet and conveyance.
Petitioner is also awarded a sum of Rs.3,860/- towards medical treatment as per the bills placed on record, which have not been disputed on behalf of the respondents. The Page No.173 of 313 total amount is rounded off to Rs.4,000/- for purpose of compensation.
However, I am not inclined to separately award attendant charges since it has not been proved on record that the petitioner suffered any grievous injuries.
126. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills Rs.3,860/-
(rounded off to Rs.4,000/-)
___________
TOTAL Rs.24,000/-
____________
(Rupees Twenty Four Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 16.08.2007 till realization.
127. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
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128. CASE-S Suit No.195/11 Unique Case ID No.02401C-0820982007
1. Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife) Page No.174 of 313
2. Smt. Monika Khurana W/o Sh.Naveen Khurana (Daughter) Versus Raj Singh @ Nasir Ali & Ors.
In brief, Smt. Bimla Ahuja along with her husband Late Sh.Baldev Raj Ahuja and son Late Sh.Jatin Ahuja were travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage since 17.06.2007. Sh.Jatin Ahuja as well as Baldev Raj Ahuja received fatal injuries in the accident while Bimla Ahuja suffered grievous injuries. Suit No.195/11 has been preferred claiming compensation in respect of death of Late Sh.Baldev Raj Ahuja, Suit No.193/11 in respect of death of Late Sh.Jatin Ahuja and Suit No.192/11 in respect of injuries sustained by Smt. Bimla Ahuja.
It is further the case of claimants that Late Sh.Baldev Raj Ahuja was employed as Assistant at Central Social Welfare Board, Government of India at the relevant time while Smt. Bimla Ahuja was employed as UDC at PWD. Further, Sh.Jatin Ahuja (son of Smt. Bimla Ahuja and Baldev Raj Ahuja) aged about 23 years was self-employed and earning about Rs.6,000/- per month by running a juice corner shop at 57, Baird Lane Area. Compensation has been claimed for Rs.40,00,000/- in respect of death of Late Sh.Baldev Raj Ahuja; Rs.20,00,000/- in respect of death of Late Sh.Jatin Ahuja and Rs.5,00,000/- in respect of injuries sustained by Bimla Ahuja.
129. Vide order dated 09.01.2008 the following issues were framed by the ld. Predecessor in all the three Suits:
Page No.175 of 313(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
130. Evidence of PW1 Smt. Bimla Ahuja as placed in Suit No. 195/11 in respect of death of Late Sh.Baldev Raj Ahuja is relied in all the three claim petitions i.e. 195/11, 192/11 and 193/11. Further statement of PW2 Sh.Joginder Singh Suri and PW3 Sh.S.C.Ahuja has been placed in Suit No.195/11 to prove the income/salary of Late Sh.Baldev Raj Ahuja, who was employed as Assistant in Central Social Welfare Board. No separate evidence has been led in Suit No.192/11 and 193/11. The documents proved by PW1 Bimla Ahuja in her statement as placed in Suit No.195/11 are filed in Suit No.192/11, 193/11 and Page No.176 of 313 195/11. The same is recorded to avoid any confusion and ensure the linkage of documents as placed in separate files by Ld. Predecessor.
PW1 Smt.Bimla Ahuja testified on the lines of claim petition and stated that she was complainant in FIR No. 195/07 dated 21.06.2007 PS: Dharamshala. She further proved copy of her Ration Card (Ex.PW1/1), copy of Bank passbook of deceased Baldev Raj Ahuja (Ex.PW1/2), original receipt regarding funeral of Baldev Raj Ahuja (Ex.PW1/3), attested copy of death certificate of Baldev Raj Ahuja (Ex.PW1/4), copy of death certificate of her son Jatin Ahuja (Ex.PW1/5), copy of pay slip of Baldev Raj Ahuja for the month of April 2007 (Ex.PW1/6), documents regarding education qualification of Baldev Raj Ahuja (Ex.PW1/7), documents regarding educational qualification of deceased Jatin Ahuja (Ex.PW1/8), copy of Voter's I-card of Baldev Raj Ahuja (Ex.PW1/9), attested copy of postmortem report of deceased Baldev Raj Ahuja (Ex.PW1/10- tagged in Suit No.195/11), attested copy of pay slip of deceased Baldev Raj for the month of May 2007 (Ex.PW1/11-tagged in Suit No.195/11), attested copy of FIR (Ex.PW1/12-tagged in Suit No.195/11), attested copy of postmortem report of deceased Jatin Ahuja (Ex.PW1/13-tagged in Suit No.193/11), attested copy of her MLC (Ex.PW1/14-tagged in Suit No.192/11), her original medical treatment record (Ex.PW1/15- colly./tagged in Suit No.192/11).
On cross-examination, PW1 deposed that she was travelling along with her husband & son. Further the driver of the bus was warned by several passengers to drive carefully as Page No.177 of 313 he was driving the bus in negligent manner. She further deposed that the bus had been hired by her husband but no individual tickets were issued. She further stated that she and her husband were Government employees and further denied the suggestion that she was not financially dependent on her husband and son.
PW2 Joginder Singh Suri proved the employment/salary of deceased Baldev Raj Ahuja who was a permanent employee of Central Social Welfare Board under the Ministry of Human and Child Development. He further proved the attested copy of appointment letter of Baldev Raj Ahuja, copies of increment orders, attested copies of pay bill register, attested copy of arrears of 6th pay commission and pay certificate from 01.01.2006 to 20.06.2007 (Ex.PW2/1-collectively 23 sheets). He further clarified that last drawn gross salary of deceased for the moth of June 2007 was Rs.25,115/- calculated on the basic salary of Rs.17,220/-.
On cross-examination he clarified that income tax of the deceased was not deducted by the office since the salary of the deceased did not come within the taxation limit.
PW3 Sh.S.C.Ahuja, Assistant, Central Social Welfare Board proved the appointment letter in respect of deceased Baldev Raj Ahuja, Assistant (Ex.PW3/1), increment orders (Ex.PW2/2-collectively-16 sheets), pay bill register 9Ex.PW2/3), arrears of 6th pay commission (Ex.PW3/4), salary certificate (Ex.PW3/5) and pay slip for the month of May-2007 (Ex.PW3/6).
Page No.178 of 313On cross examination he clarified that during the relevant period the salary was paid to the employees in the company in cash but he had not brought the cash receipts since the same were not summoned.
131. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Counsel for petitioners contended that deceased Late Sh.Baldev Raj Ahuja was working as Assistant in Central Social Welfare Board and the last drawn salary for May-2007 was Rs.25,115/- as per statement of PW2 Joginder Singh after the 6 th pay commission. Further pay slip for the month of May-2007 reflects the total gross earning Rs.17,912/- since the arrears/fixation of salary was made subsequently. As such it is urged that for purpose of compensation the gross salary be taken as Rs.25,115/- and also 30% be added toward future prospects. It is further urged that the loss of dependency be calculated after making deduction of 1/3rd towards personal expenses and applying the relevant multiplier of 13.
In the present case, it may be noticed that Petitioner No.2 Monika Khurana W/o Naveen Khurana who is stated to be the daughter of deceased was married and as such she cannot be considered as a dependent upon the deceased. It may also be observed that the son of the deceased Late Sh.Jatin Ahuja who expired in the same accident was also financially independent since it is claimed that he was running a Juice Corner and Page No.179 of 313 earning about Rs.6,000/- per month. The wife of the deceased namely Smt. Bimla Ahuja is also employed as UDC with PWD and was not financially dependent upon the deceased. In the aforesaid circumstances, I am of the considered opinion that the compensation has to be calculated for loss to estate and not for loss of dependency as held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by Hon'ble Mr. Justice J.R. Midha).
In Dinesh Adhlak (supra), deceased (wife of the petitioner) aged about 31 years was working as a teacher while her husband aged 34 years was working as a teacher at Jesus and Merry College and was not financially dependent upon the deceased. It was held by the Hon'ble High Court that the husband is entitled to compensation for loss to estate and not for loss of dependency since he was not financially dependent upon the deceased. It may also be appropriate to quote the relevant principles as settled in A. Manavalagan vs. A. Krishnamurthy & Ors., 2005 ACJ 1992 by the Hon'ble Karnataka High Court as also referred in Dinesh Adhlak (supra).
"19 (iv). The procedure for loss of estate is broadly the same as procedure for determination for loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the Page No.180 of 313 same in both cases".
" 20 (v)........Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependents) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependent spouse/children/parents. Where the claimants are non- dependent brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
132. In the light of aforesaid principles, the loss to estate is assessed as under :
(a) Income of Deceased The compensation is to be decided with the pay scale applicable at the time of death and since the 6 th Pay Commission had been implemented since 2006. The gross-salary of deceased for purpose of assessment of compensation is taken as Rs.25,115/- as proved by PW2.
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 30% be made considering the fact that deceased was aged about 50 years at the time of accident.
In Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 while approving the ratio with regard to future Page No.181 of 313 prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Hon'ble Apex Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p.
134):
"24. ... In view of the imponderables and uncertain- ties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addi - tion should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percent- age of increase, it is necessary to standardise the addition to avoid different yardsticks being ap- plied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure there-Page No.182 of 313
from should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for fu- ture prospects shall help in achieving certainty in ar- riving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased to- wards future prospects where the deceased had a per- manent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual incre- ments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
In the present case, the date of birth of deceased is 11.03.1957 as per the matriculation certificate (Ex.PW1/7- collectively). As such on the date of accident deceased was aged about 50 years and 03 months.
Having regard to the dicta in Sarla Varma's case (supra) since the deceased was aged about more than 50 years, 15% of the salary is to be added towards future prospects for computation of income of deceased.
(c) As held in Dinesh Adhlak vs. Pritam Singh & Ors. (supra) since the deceased and petitioner no.1 were having a common establishment, therefore, the savings of the deceased have to be taken as 1/3 rd of his income. The petitioner shall be accordingly entitled to 1/3 rd of the income Page No.183 of 313 of the deceased as loss of estate.
(d) Selection of multiplier:
Since the deceased was aged about 50 years & 03 months on the date of accident, as per per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 11 is to be adopted for the purpose of assessment of compensation.
(e) Loss of Estate In the light of aforesaid facts, loss of estate as 1/3 rd of the income of the deceased and applying the multiplier of 11 is computed as Rs.12,70,819/- [Rs.25,115/- (pay) + 15% (future prospect) X 12 (months) X 11 (multiplier) X 1/3rd].
133. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium. Rs.25,000/- towards funeral expenses. Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Page No.184 of 313 Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are entitled to Rs.1 lakh towards loss of love and affection, Rs.1,00,000/- towards loss of consortium to wife and Rs.25,000/- are awarded towards funeral expenses.
134. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of estate Rs.12,70,819/-
Loss of Love and affection Rs.1,00,000/-
Loss of consortium Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.14,95,819/-
________________
(Rupees Fourteen Lacs Ninety Five Thousand Eight Hundred & Nineteen Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 16.08.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
135. It may be observed that though married daughters are not strictly dependent on their father but are conventionally awarded some percentage out of the compensation for the loss of love & affection and the care & support which the father customarily extends to his daughters throughout the lifetime.
Page No.185 of 313Accordingly on realization, petitioner No.1 shall be entitled to 90% of the award amount and petitioner no.2, who is the married daughter of the deceased shall be entitled to 10% of the award amount along with proportionate up-to-date interest. Out of the share of petitioner no.1, Rs.1,00,000/- shall be released to her and remaining amount shall be kept in ten fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years, eight years, nine years and ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Out of the share of petitioner no.2, 50% shall be released and 50% shall be put in fixed deposit with a nationalized bank for a period of two years without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
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136. CASE-T Suit No.193/11 Unique Case ID No.02401C-1465092008
1. Smt.Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja (Wife)
2. Smt.Monika Khurana W/o Sh.Naveen Khurana (Daughter) Versus Raj Singh @ Nasir Ali & Ors.
137. The present case relates to the assessment of Page No.186 of 313 compensation in respect of death of late Shri Jatin Ahuja (son of Smt. Bimla Ahuja & late Shri Baldev Raj Ahuja) and the facts and evidence have already been detailed above in Suit No.195/11.
138. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
In the present case it may be noticed that Petitioner No.2 Monika Khurana W/o Naveen Khurana who is stated to be the sister of deceased was married and as such she cannot be considered as a dependent upon the deceased. The mother of the deceased namely Smt. Bimla Ahuja (Petitioner No.1) is also employed as UDC with PWD and was not financially dependent upon the deceased. In the aforesaid circumstances, I am of the considered opinion that the compensation has to be calculated for loss to estate and not for loss of dependency as held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by Hon'ble Mr. Justice J.R. Midha).
In Dinesh Adhlak (supra), deceased (wife of the petitioner) aged about 31 years was working as a teacher while her husband aged 34 years was working as a teacher at Jesus and Merry College and was not financially dependent upon the deceased. It was held by the Hon'ble High Court that the husband is entitled to compensation for loss to estate and not for loss of dependency since he was not financially dependent upon Page No.187 of 313 the deceased. Further, in MAC APP 1145/2012 decided on 29th April, 2015 by Hon'ble Mr. Justice G.P. Mittal (R. Murgadass & Ors. v. Satyapal & Anr.), the appellants were not financially dependent upon the deceased, it was observed that even if the legal representatives of the deceased victims of a motor vehicular accidents are not financially dependent upon the deceased, they are entitled to compensation towards loss to estate only and the principles laid down by the Hon'ble Division Bench of Karnataka High Court in A. Manavalagan v. A. Krishnamurthy & Ors., 2005 ACJ 1992 were relied for calculating the loss of estate. It may be appropriate to quote the relevant principles as settled in A. Manavalagan v. A. Krishnamurthy & Ors., 2005 ACJ 1992 by the Hon'ble Karnataka High Court:
"19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death.
The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger Page No.188 of 313 share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20. The following illustrations with reference to the case of a deceased who was aged 40 years with a Page No.189 of 313 monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
(i) If the family of the deceased consists of a dependant wife and child, normally one-third will be deducted towards the personal and living expenses of the deceased. The balance of Rs. 6000/- per month (or Rs. 72000/- per annum) will be treated as contribution to the dependent family. The loss of dependency will be arrived by applying a multiplier of 14. The loss of dependency will be Rs. 10,08,000/- plus Rs. 10,000/- under the head of loss of Estate.
(ii) If the family of the deceased was larger, say consisting of dependent parents, wife and two children, necessarily the deceased would spend more on his family and the deduction towards personal and living expenses of the deceased will shrink to one-fifth instead of one-third (Note: In Gulam Khader v. United India Insurance Co., Ltd.,
- ILR 2000 Kar 4416 details of this illustration have been given). Therefore the deduction toward personal and living expense would be Rs. 1800/- per month (one-fifth of Rs.9000/-) and contribution to the family would be Rs. 7200/- per month or Rs. 86,400/- per annum. Thus loss of dependency will be Rs. 12,09,600/- (by applying the multiplier of
14). The award under the head of loss of estate would be Rs. 10000/-.
(iii) If the deceased was a bachelor with dependent parents aged 65 and 60 years, normally 50% will be deducted towards personal and living expenses of the deceased. This is because a bachelor will be more care free as he had not yet acquired a wife or child and therefore would tend to spend more on himself. There was also a possibility of the bachelor getting married in which event the contribution to parents will get reduced. Therefore the contribution to the family (parents) will be Rs. 4500/- per month or Rs. 54000/ - per annum. As Page No.190 of 313 the multiplier will be 10 with reference to age of the mother, the loss of dependency will be Rs. 5,40,000/-. Loss of Estate would be a conventional sum of Rs. 10,000/-.
Note: The above three illustrations relate to cases where the claimants are dependants. The said illustration demonstrate that even though the income of the deceased and age of the deceased are the same, the 'loss of dependency' will vary, having regard to the number of dependants, age of the dependants and nature of dependency. The ensuing illustrations relate to cases where the legal heirs of the deceased are not dependants.
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one -fourth (that is 25%), the loss to the estate would be Rs. 2250/-per month or Rs. 27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each Page No.191 of 313 one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000x14=168,000/- and loss to estate would be 36000x14=504,000/-. In all Rs. 6,72,000/- will be the compensation.
(v) If the deceased was a bachelor and the claimants are two non-dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/- per month), the annual savings would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/-per annum.
Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above Page No.192 of 313 percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
In view of above, since the petitioner no.1 was not financially dependent upon the deceased, the question of awarding any amount under the head of loss of dependency would not arise as there was no financial dependency. Therefore the savings of the deceased have to be taken as 1/3 rd of his income and the petitioner shall be accordingly entitled to 1/3rd of the income of the deceased as loss of estate.
139. In the light of aforesaid principles, the loss to estate is assessed as under:
(a) Income of Deceased Counsel for the petitioners submits that deceased Jatin Ahuja, aged about 23 years was running a shop of Juice Corner at 57, Barid Lane, New Delhi and was earning about Rs.6,000/- per month. However, it is admitted by the counsel for petitioners that in the absence of any cogent evidence to prove the income of deceased the same may be calculated on the basis of minimum wages of matriculate since the matriculation certificate (Ex.PW1/8) of deceased is placed in Suit No.195/11.
Considering the facts and circumstances for the Page No.193 of 313 purpose of assessment of compensation, the notional income of the deceased is assessed at minimum wages of a matriculate as notified by Govt. of NCT of Delhi for the relevant period @ Rs.3,918/- per month.
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 23 years but the same has been vehemently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Page No.194 of 313 Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC
166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In view of the legal position as discussed by the Hon'ble High Court since the deceased was self-employed and income has been assessed on notional basis on minimum wages, addition of income towards future prospects cannot Page No.195 of 313 be made for the purpose of compensation.
(c) Selection of multiplier:
Since the deceased was aged about 23 years and the assessment of compensation is to be computed for loss of estate and not loss of dependency, multiplier of 18 would be applicable as per Sarla Verma (Smt.) & Others vs. Delhi Transport Corporation & Another (2009) 6 SCC 121.
(d) Loss of Estate In the light of aforesaid facts, loss of estate as 1/3 rd of the income of the deceased and applying the multiplier of 18 is computed as Rs.2,82,096/- [Rs.3,918/- (income) X 12 (months) X 18 (multiplier) X 1/3rd].
140. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 awarded a sum of Rs.1 lakh Page No.196 of 313 towards loss of love and affection and Rs.25,000/- towards funeral expenses. Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners are entitled to Rs.1 lakh towards loss of love and affection and Rs.25,000/- are awarded towards funeral expenses.
141. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of estate Rs.2,82,096/--
Loss of Love and affection Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.4,07,096/-
________________
(Rounded off to Rs.4,07,100/-)
(Rupees Four Lakh Seven Thousand & One Hundred Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 16.08.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
142. It may be observed that though married sisters are not strictly dependent on their brothers but are conventionally Page No.197 of 313 awarded some percentage out of the compensation for the loss of love and affection and the care which the brothers customarily extend to their sisters. Accordingly on realization, petitioner No.1 shall be entitled to 90% and petitioner no.2, who is the married daughter of the deceased shall be entitled to 10% of the award amount along with proportionate up-to-date interest thereon.
Out of the share of petitioner no.1, Rs.1,00,000/- shall be released to her and remaining amount shall be kept in Ten fixed deposits of equal amount in her name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years, eight years, nine years and ten years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Out of the share of petitioner no.2, 50% shall be released and 50% shall be put in fixed deposit with a nationalized bank for a period of one year without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
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143. CASE-U Suit No.192/11 Unique Case ID No.02401C-0820722007 Smt. Bimla Ahuja W/o Late Sh.Baldev Raj Ahuja Versus 1.
Raj Singh @ Nasir Ali & Ors.
Page No.198 of 313The present case relates to the assessment of compensation in respect of injuries suffered by Smt. Bimla Ahuja (wife of late Shri Baldev Raj Ahuja) and the facts and evidence have already been detailed above in Suit No.195/11.
144. Issue No.(ii) To what amount of compensation the claimants are entitled to and from whom?
Common evidence led on behalf of petitioner has already been referred in Suit No.195/11. Counsel for petitioner submits that the petitioner Bimla Ahuja sustained simple injuries as referred in the MLC. It is further urged that expenses for Rs.3,800/- as per prescription/bill Ex.PW1/15 is placed in suit no.192/11.
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
As per MLC (Ex.PW1/14) prepared at Dr. Rajender Prasad Government Hospital and associated hospital, Kangara the petitioner had suffered 'swelling left side of forehead'. Final opinion was reserved to be given after surgical record. Further prescription/bills regarding treatment at Delhi have been placed on record. Petitioner also appears to have been advised medical rest for some days though no evidence from the office of the Page No.199 of 313 petitioner has been led in case she availed medical leave on account of injuries suffered in the accident. However, judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also expenses has separately been incurred on conveyance from Kangra to Delhi. Considering the facts and circumstances petitioner is awarded compensation of Rs.20,000/- towards pain and suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet, and conveyance.
Medical Bills Petitioner is also awarded a sum of Rs.3,800/- towards medical bills which has not been disputed by counsel for respondents. The amount is rounded off to Rs.4,000/- for purpose of compensation.
145. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.20,000/-
Diet & conveyance Rs.5,000/-
Medical Bills Rs.3,800/-
(rounded off to Rs.4,000/-
___________
Total Rs.29,000/-
________________
(Rupees Twenty Nine Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f.
Page No.200 of 31316.08.2007 till realization.
146. On realization, entire compensation amount along with up-to-date interest shall be released to the petitioner.
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147. CASE-V Suit No.657/11 Unique Case ID No.02401C-0886142007 Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioner (Anu Gulati), she was travelling in bus no.DL 1PC 7676 along with her husband late Shri Sanjeev Gulati @ Sanjay on a pilgrimage since 17.06.2007 in bus No DL 1PC 7676 and received grievous injuries in the accident on 20.06.2007. Shri Sanjeev Gulati @ Sanjay (husband of the petitioner) also suffered fatal injuries in the accident and expired on 20.06.2007. Petitioner was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP on 20.06.2007 after the accident. She was thereafter shifted to Indian Spinal Injuries Centre, Delhi wherein she remained admitted from 22.06.2007 to 07.07.2007 with the final diagnosis of "fracture left transverse process of L1, L2, L3; fracture of right superior, inferior, pubic rami; fracture right sacralm-LC type I". Further, as per the discharge summary, the patient was managed conservatively considering the nature of injuries. It is Page No.201 of 313 further the case of petitioner that she was employed as a beautician at Sidico Boutique and Beauty Parlour, Moti Nagar and earning about Rs.5,000/- per month. Compensation is claimed for Rs.15,00,000/-.
148. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor:-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
149. In support of the claim petition, four witnesses were examined namely PW1 Smt. Sunita, PW2 Rakesh Kumar and Page No.202 of 313 PW3 Dr. Pushkar Chawla as per the statement placed in Suit No.657/11. Also, petitioner Anu Gulati (PW4) led her evidence in common in respect of Suit No.657/11 as well as 658/11 (claim petition in respect of her deceased husband) as per the statement placed in Suit No.658/11.
PW1 Smt. Sunita who was engaged as an attendant deposed that she had been looking after the petitioner as injured was unable to look after herself after the accident. Further, she attended the petitioner from 15.07.2007 to 31.01.2008 for day and night at a salary of Rs.5,000/- per month in cash.
During cross-examination, she clarified that she had been doing the attendant work but had for the first time worked as an attendant to a patient. Further, during the aforesaid period she had not done any work for her own family and denied the suggestion that she had not worked as an attendant.
PW2 Shri Rakesh Kumar, Senior Technician, Indian Spinal Injuries Centre proved the bills of the petitioner for Rs.26,647/- (Ex.PW2/2) and the discharge summary of the petitioner for the period 22.06.2007 to 07.07.2007 (Ex.PW2/3). Nursing notes were further produced during cross-examination (Ex.PW2/R1).
PW3 Dr. Pushkar Chawla proved the discharge summary prepared by him at Indian Spinal Injuries Centre (Ex.PW2/3). He further deposed that patient was suffering from Page No.203 of 313 fracture left transverse process L1, L2, L3; fracture of right superior inferior pubic rami; fracture right sacralm as detailed in the discharge summary. He further stated that multiple fractures were grievous in nature but no surgery was performed and the patient was advised for continuous physiotherapy for 3-4 months. He further stated that due to injuries sustained by the patient she may have pain here and there in later part of her life as the backbone injury cannot be cured perfectly and would have discomfort.
During cross-examination, he clarified that he had examined the patient in last week in October, 2007.
PW4 Anu Gulati led her evidence on the lines of claim petition regarding the injuries sustained by her and in respect of death of her husband Sanjeev Gulati. She further stated that her husband was self employed/running handloom shop in the name and style of JMD Handloom at T-192, Baljeet Nagar and was earning about Rs.8,000/- per month. She further relied upon documents Ex.PW4/1 to Ex.PW4/19 as detailed in the affidavit i.e. attested copy of MLC of the petitioner (Ex.PW4/1), medical bills of the petitioner (Ex.PW4/2), prescriptions/treatment record of petitioner (Ex.PW4/3 & Ex.PW4/4), copy of ration card (Ex.PW4/5), death certificate of her deceased husband Sanjeev Gulati (Ex.PW4/6), Voter I-card of her deceased husband (Sanjeev Gulati) Ex.PW4/7, surviving members certificate for the petitioners (Ex.PW4/8), educational papers of her deceased husband Sanjeev Gulati (Ex.PW4/9), wedding card of the petitioner (Ex.PW4/10), bills of conveyance Page No.204 of 313 (Ex.PW4/11), copy of master card of her deceased husband Sanjeev Gulati (Ex.PW4/12), attested copy of insurance policy of the offending bus (Ex.PW4/13), attested copy of RC of the offending bus (Ex.PW4/14), attested copy of driving licence of the driver of the offending bus (Ex.PW4/15),, attested copy of the permit of the offending bus (Ex.PW4/16), certified copy of FIR No.125/07 dated 21.06.2007 PS Dharamshala, Himachal Pradesh (Ex.PW4/17), postmortem report of her deceased husband Sanjeev Gulati (Ex.PW4/18) and Election I-cards of the petitioners (Ex.PW4/19).
On cross-examination, she deposed that the tour was organised by Shri Baldev Ahuja and there were 23 elders, 06 children and two other babies. Further, one of the seats might be empty in the bus. She further stated that she was awake at the time of the accident and the driver of the offending bus was driving at high speed. She denied the suggestion that the bus was overcrowded and there were more passengers than its capacity. She further admitted that she had not filed any document to show that her husband was a graduate or that she was employed in Sibaca Boutique and was earning about Rs.5,000/- per month. She further denied that a maid was not employed at Rs.5,000/- per month or that the accident had taken place due to overloading of bus.
150. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Page No.205 of 313Counsel for petitioner submitted that immediately after the accident on 20.06.2007, petitioner was admitted at Dr. Rajender Prasad Government Medical College Hospital, Tanda, District Kangra, Himachal Pradesh and due to her precarious condition was shifted to Indian Spinal Injuries Centre, Delhi on 22.06.2007 wherein she remained admitted till 07.07.2007. It was further contended that petitioner was employed with Sibaca Boutique and earning about Rs.5,000/- per month.
151. It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
As per discharge summary of Indian Spinal Injuries Centre, Delhi, petitioner was admitted therein on 22.06.2007 and discharged on 07.07.2007. Further, the petitioner is reflected to have suffered fracture transverse processes of L1, L2 & L3, fracture right superior, inferior pubic rami and fracture right sacralm-LC type I and was managed conservatively. Further, testimony of PW3 Dr. Pushkar Chawla reflects that petitioner was advised continuous physiotherapy for 3-4 months as she required active exercises for 3-4 months. It may also be noticed that as per statement of PW1 Smt. Sunita who was engaged as an attendant the petitioner was completely unable to look after herself and PW1 was engaged to look after the petitioner for the period 15.07.2007 to 31.01.2008. Considering the nature of injuries and the evidence on record, it can be Page No.206 of 313 presumed that the petitioner may not have been able to carry her vocation for a period of about 09 months.
However, admittedly no documentary/cogent evidence has been led to prove either the employment or the income of the petitioner. In the facts and circumstances, income of the petitioner is assessed on notional basis as per the minimum wages of an unskilled labourer as notified by the Government of NCT of Delhi for the relevant period @ Rs.3,470/- per month.
Considering the fact that petitioner suffered fracture transverse processes of L1, L2 & L3, fracture right superior, inferior pubic rami and fracture right sacralm-LC type I and was managed conservatively, petitioner is awarded a sum of Rs.31,230/- {i.e. Rs.3,470/- (notional income per month) X 09 (months)} towards loss of income for a period of 09 months.
Special Diet and Conveyance Petitioner is further awarded an amount of Rs.30,000/- towards special diet and Rs.20,000/- towards conveyance for shifting from Kangra to Delhi and amount spent during the period of treatment.
Pain and Suffering It may be noticed that immediately after the accident on 20.06.2007, petitioner was admitted at Dr. Rajender Prasad Government Medical College Hospital, Tanda, District Kangra, Himachal Pradesh and shifted to Indian Spinal Injuries Centre, Delhi on 22.07.2007 and remained admitted therein till Page No.207 of 313 07.07.2007. Further, as per per discharge summary of Indian Spinal Injuries Centre, Delhi, petitioner suffered fracture transverse processes of L1, L2 & L3, fracture right superior, inferior pubic rami and fracture right sacralm-LC type I and was managed conservatively.
Considering the nature of injuries suffered by the petitioner and record of treatment, petitioner is awarded a sum of Rs.1,00,000/- towards pain and suffering for injuries sustained by her in the accident.
Claim towards Medical Bills Petitioner has placed and proved on record medical bills amounting to Rs.29,554/- which have not been disputed on behalf of the respondents. Petitioner is accordingly awarded a sum of Rs.29,554/- towards medical bills.
Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
In the present case, PW1 Smt. Sunita who was engaged as an attendant deposed that she had been looking after the petitioner as the petitioner was unable to look after herself Page No.208 of 313 after the accident. Further, she attended the petitioner from 15.07.2007 to 31.01.2008 for day and night at a salary of Rs.5,000/- per month in cash.
During cross-examination, she clarified that since she was required to stay for the whole day, she charged Rs.5,000/- per month.
It may be noticed that the minimum wages for a unskilled worker during the relevant period were Rs.3,470/-. However, since the attendant (PW1) was required to stay for 24 hours a day, the charges for Rs.5,000/- are not exaggerated and are allowed for the period 15.07.2007 to 31.01.2008. Accordingly, a sum of Rs.32,500/- is awarded to the petitioner towards attendant charges.
Also, a sum of Rs.2,500/- is granted to the family members towards gratuitous services rendered by them during the period 20.06.2007 till 14.07.2007. Total amount of Rs.35,000/- is accordingly granted to petitioner towards the attendant charges
152. As discussed above, the overall compensation is tabulated as under:
Loss of Income Rs.31,230/-
Pain & Suffering Rs.1,00,000/-
Conveyance Rs.20,000/-
Special Diet Rs.30,000/-
Medical Expenses Rs.29,554/-
Attendant Charges Rs.35,000/-
---------------------
Total Rs.2,45,784/-
-------------------------------
(Rounded off to Rs.2,46,000/-)
(Rupees Two Lakh Forty Six Thousand Only) Page No.209 of 313 The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 01.09.2007 till realization.
153. On realization, 30% shall be released to the petitioner and remaining 70% shall be equally fixed deposited in her name with a nationalized bank for a period of one year, two years, three years, four years and five years respectively without the facility of loan, advance or premature withdrawal with release of quarterly interest in her account.
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154. CASE-W Suit No.658/11 Unique Case ID No.02401C-0885982007
1. Smt.Anu Gulati W/o Lt.Sh.Sanjeev Gulati (Wife)
2. Smt. Pushpa Gulati W/o Sh.Rammurti Gulati (Mother)
3. Sh.Rammurti Gulati S/o Late Sh.Diwan Chand (Father)
4. Jyoti Gulat D/o Sh.Rammurti Gulati (Sister) Versus Raj Singh @ Nasir Ali & Ors.
As per the case of petitioners (who are the wife, parents and sister of the deceased Sanjeev Gulati @ Sanjay), petitioner no. 1 along with her husband Sanjeev Gulati (since deceased) were travelling in bus no.DL 1PC 7676 on a pilgrimage since 17.06.2007. Sanjeev Gulati received fatal injuries in the accident on 20.06.2007 while petitioner no.1 Smt. Anu Gulati (wife of deceased) sustained grievous injuries and Page No.210 of 313 has separately preferred Suit No.657/11. It is further the case of petitioners that deceased was running a handloom shop in the name and style of M/s J.M.D. Handloom at T-192, Baljeet Nagar, New Delhi-08 and earned about Rs.8,000/- per month. Compensation is claimed for a sum of Rs.20,00,000/-.
155. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor:-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
156. In support of the claim petition bearing Suit Page No.211 of 313 No.657/11 (in respect of injuries sustained by Anu Gulati/petitioner no.1) and present Suit No.658/11 (in respect of death of Sanjeev Gulati @ Sanjay) four witnesses were examined. PW1 Smt. Sunita, PW2 Rakesh Kumar and PW3 Dr. Pushkar Chawla are relevant in respect of injuries sustained by Anu Gulati as per the statements placed in Suit No.657/11. Petitioner Anu Gulati (PW4) led her evidence in common in respect of Suit No.657/11 as well as present Suit No. 658/11 as per the statement placed in Suit No.658/11.
PW4 Anu Gulati led her evidence on the lines of claim petition in respect of injuries sustained by her and death of her husband Sanjeev Gulati. She further stated that her husband was self employed/running handloom shop in the name and style of JMD Handloom at T-192, Baljeet Nagar and was earning about Rs.8,000/- per month. PW4 further relied upon documents Ex.PW4/1 to Ex.PW4/19 as detailed in the affidavit i.e. attested copy of MLC of the petitioner (Ex.PW4/1), medical bills of the petitioner (Ex.PW4/2), prescriptions/treatment record of petitioner (Ex.PW4/3 & Ex.PW4/4), copy of ration card (Ex.PW4/5), death certificate of her deceased husband Sanjeev Gulati (Ex.PW4/6), Voter I-card of her deceased husband (Sanjeev Gulati) Ex.PW4/7, surviving members certificate for the petitioners (Ex.PW4/8), educational papers of her deceased husband Sanjeev Gulati (Ex.PW4/9), wedding card of the petitioner (Ex.PW4/10), bills of conveyance (Ex.PW4/11), copy of master card of her deceased husband Sanjeev Gulati (Ex.PW4/12), attested copy of insurance policy of the offending Page No.212 of 313 bus (Ex.PW4/13), attested copy of RC of the offending bus (Ex.PW4/14), attested copy of driving licence of the driver of the offending bus (Ex.PW4/15),, attested copy of the permit of the offending bus (Ex.PW4/16), certified copy of FIR No.125/07 dated 21.06.2007 PS Dharamshala, Himachal Pradesh (Ex.PW4/17), postmortem report of her deceased husband Sanjeev Gulati (Ex.PW4/18) and Election I-cards of the petitioners (Ex.PW4/19).
On cross-examination, she deposed that the tour was organised by Shri Baldev Ahuja and there were 23 elders, 06 children and two other babies. Further, one of the seats might be empty in the bus. She further stated that she was awake at the time of the accident and the driver of the offending bus was driving at high speed. She denied the suggestion that the bus was overcrowded and there were more passengers than its capacity. She further admitted that she had not filed any document to show that her husband was a graduate or that she was employed in Sibaca Boutique and was earning about Rs.5,000/- per month. She further denied that a maid was not employed at Rs.5,000/- per month or that the accident had taken place due to overloading of bus.
157. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
(a) Income of Deceased Counsel for the petitioners contended that deceased Page No.213 of 313 Sanjeev Gulati, aged about 27 years was running business in the name of M/s JMD Handloom at T-192 Baljeet Nagar and earning about Rs.8,000/- per month.
Admittedly, no documentary evidence has been placed on record to prove that deceased was running business at aforesaid premises and earning Rs.8,000/- per month. The bald statement of petitioner no.1 cannot be accepted in absence of any corroborating evidence to prove the running of business and income of deceased.
I am of the considered opinion that in the absence of any cogent evidence, income of the deceased may be assumed on notional basis as per minimum wages as notified by Govt. of NCT of Delhi for the relevant period for a matriculate @ Rs.3,918/- per month in view of copy of secondary school certificate of deceased placed on record.
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 27 years but the same has been vehemently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Page No.214 of 313 Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In the present case, in view of aforesaid legal position as laid by the Hon'ble High Court since the deceased was self-employed and income has been assessed on notional basis as per minimum wages, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Deduction towards personal and living expenses of the deceased:
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the Page No.215 of 313 deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, 1/4th where the number of dependent family members is 4 to 6 and 1/5 th where the number of dependent family member exceeds 6.
Normally, the father is not considered as dependent upon son. There is no cogent evidence on record to presume that petitioner no. 3 Rammurti Gulati aged about 56 years at the time of accident was financially dependent upon the deceased. In view of the same, number of dependents for the purpose of assessment of compensation is taken as 3.
Considering the number of dependents as three, the deduction towards personal and living expenses of the deceased shall be 1/3rd as held in Sarla Verma's case (supra).
(d) Selection of multiplier:
The date of birth of deceased is reflected as 10.06.1980 in the tenth class certificate and the age is also corroborated by the copy of ration card as well as voter's identity card (Ex.PW4/7) placed on record. The deceased was accordingly aged about 26 years on the date of accident.
As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 17 would be applicable for the purpose of assessment of compensation.
(e) Loss of financial dependency In the facts and circumstances, loss of financial Page No.216 of 313 dependency of the petitioners comes to Rs.5,32,848/- [i.e. Rs.3,918/- (notional income) X 12 (months) X 17 (multiplier) X 2/3 (dependency)]. The same is rounded off to Rs.5,33,000/-.
158. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles. It needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
Hon'ble Apex Court further awarded a sum of Rs.50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Interest @ 9% per annum was also awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Petitioner no. 1 is accordingly awarded Rs.1 lakh for loss of consortium and petitioner no. 1 & 4 are also granted Rs.1 lakh towards loss of love and affection. Petitioner no. 2 & 3 shall be further entitled to Rs.50,000/- each on account of loss of Page No.217 of 313 love and affection as held in M. Mansoor v. United India Insurance Co. Ltd. (supra). Petitioners are also awarded Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
159. Petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of financial dependency Rs.5,32,848/-
(Rounded off to Rs.5,33,000/-) Loss of Consortium to Wife Rs.1,00,000/- Loss of love and affection to wife Rs.1,00,000/- Loss of love and affection to parents Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.8,68,000/-
________________
(Rupees Eight Lakh Sixty Eight Thousand only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition w.e.f. 01.09.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
Disbursement
160. Having suffered the perpetual loss and affection of a brother, petitioner no. 4 who is the sister of the deceased shall be entitled to Rs.50,000/- out of Rs.8,68,000/- with proportionate up-to-date interest thereon.
Page No.218 of 313Out of the share of petitioner no.4 (sister of deceased), an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) shall be released to her and remaining amount of shall be kept in FDR with a nationalised bank for a period of one year without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, out of balance amount of Rs.8,18,000/-, petitioner no.1 Anu Gulati (wife of deceased) shall be entitled to 70% and petitioner no. 2 & 3 (parents of deceased) shall be entitled to 15% each along with proportionate up to date interest thereon.
On realization, an amount of Rs.1,00,000/- (Rupees One Lakh only) shall be released to petitioner no. 1 Anu Gulati (wife of deceased) and remaining amount of her share shall be kept in seven fixed deposits of equal amount in her name with a nationalised bank for a period of one year, two years, three years, four years, five years, six years and seven years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
Further, out of the share of petitioner no.2 & 3 (parents of deceased), an amount of Rs.30,000/- (Rupees Thirty Thousand Only) each shall be released to petitioner no. 2 & 3 and remaining amount of their share shall be kept in five fixed deposits of equal amount in their respective names with a nationalised bank for a period of one year, two years, three years, four years and five years respectively without the facility Page No.219 of 313 of advance, loan or premature withdrawal with release of quarterly periodical interest in their account.
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161. CASE-X Suit No.326/11 Unique Case ID No.02401C-0816062007 Raghav Ram S/o Late Sh. Bhikari Ram (Brother) Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioner, his brother late Shri Sita Ram aged about 39 years was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage since 17.06.2007 and received fatal injuries in the accident on 20.06.2007. It is further the case of petitioner that the deceased was self employed as a caterer/halwai on contract basis for parties in the name of Nanakchand Jatu Halwai, Ranjeet Nagar and was earning about Rs.8,000/- per month. It was further claimed that the petitioner is younger brother of the deceased and was dependent on the deceased for day-to-day needs. Compensation is claimed for a sum of Rs.20,00,000/-.
It may be clarified at this stage itself that during cross- examination petitioner admitted that the deceased was his elder brother and there appears to be some mishmash while drafting the facts in the petition.
162. Vide order dated 09.01.2008 following issues were Page No.220 of 313 framed by the ld. Predecessor:
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
163. PW1 Raghav Ram testified on the lines of the claim petition and further proved copy of ration card (Ex.PW1/1), death certificate of deceased Sita Ram (Ex.PW1/2), certificate regarding his permanent residence (Mark A), copy of postmortem report of deceased (Ex.PW1/3), ration card of present address (Ex.PW1/4).
During cross examination, he stated that wife of petitioner and his parents had expired prior to death of his Page No.221 of 313 brother. Further, the deceased was 39 years old but no proof had been filed regarding his age except the ration card. He further clarified that the deceased was 11-12 years younger to him and the petitioner was aged about 50 years. He further stated that he was living along with his brother in Delhi but had no proof thereof. Further, he had no proof to show that deceased was earning Rs.8,000/- per month. He further stated that he was a rickshaw puller by profession while the deceased was a cook.
164. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Counsel for petitioner contended that the income of the deceased be assessed at Rs.8,000/- per month and further the loss of dependency be calculated after making deduction of 1/2 towards personal expenses and applying the relevant multiplier.
In the present case, it may be noticed that the claim has been filed by the elder brother of the deceased (who was a bachelor aged about 39 years at the time of accident). Petitioner clarified during cross-examination that the deceased was his younger brother and working as a cook/halwai while the petitioner himself is a rickshaw puller and aged about 45 years at the time of filing of petition. There is no cogent evidence on record to infer that the petitioner was financially dependent upon the deceased. In the aforesaid circumstances, I am of the considered opinion that the compensation has to be calculated for loss to estate and not for loss of dependency as Page No.222 of 313 held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by Hon'ble Mr. Justice J.R. Midha).
In Dinesh Adhlak (supra), deceased (wife of the petitioner) aged about 31 years was working as a teacher while her husband aged 34 years was working as a teacher at Jesus and Merry College and was not financially dependent upon the deceased. It was held by the Hon'ble High Court that the husband is entitled to compensation for loss to estate and not for loss of dependency since he was not financially dependent upon the deceased. It may also be appropriate to quote the relevant principles as settled in A. Manavalagan vs. A. Krishnamurthy & Ors., 2005 ACJ 1992 by the Hon'ble Karnataka High Court and referred in Dinesh Adhlak (supra).
"19 (iv). The procedure for loss of estate is broadly the same as procedure for determination for loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases".
" 20 (v)........Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependents) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the Page No.223 of 313 spouses are having independent establishments. The above will apply where the family consists of non- dependent spouse/children/parents. Where the claimants are non-dependent brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
165. In the light of aforesaid principles, the loss to estate is assessed as under:
(a) Income of Deceased No cogent evidence has been led on record to prove that the deceased was earning about Rs.8,000/- per month as a halwai. I am of the considered opinion that bald statement of the petitioner cannot be accepted to hold that deceased was earning Rs.8,000/- per month. In the facts and circumstances, for the purpose of compensation, income of the deceased is assessed on notional basis as per the minimum wages notified for an unskilled worker by the Govt. of NCT of Delhi for the relevant period @ Rs.3,470/- per month.
(b) If addition in income towards future prospects is to be made Counsel for petitioner claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 39 years at the time of accident.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Page No.224 of 313 Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In the present case, in view of aforesaid legal position as settled by the Hon'ble High Court, since the deceased was self-employed and income has been assessed on notional basis on minimum wages, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Selection of multiplier:
Page No.225 of 313Deceased was aged about 39 years at the time of accident as per testimony of PW1. In the absence of any evidence to the contrary, the age of deceased is taken as 39 for the purpose of assessment of compensation and as per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 15 would be applicable for the purpose of assessment of compensation.
(d) Keeping in view the principles as referred in the case of A. Manavalagan vs. A. Krishnamurthy & Ors., 2005 ACJ 1992 (supra), since the petitioner is the non-dependent brother claiming on behalf of the estate, the savings has to be taken 15% of the income of the deceased for purpose of assessment of compensation.
(e) Loss of Estate In the facts and circumstances, loss of estate of the 15% of the income of the deceased applying the multiplier of 15 is computed as Rs.93,690/- {Rs.3,470/- (monthly income) X 12 (months) X 15 (multiplier) X 15%}.
166. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.Page No.226 of 313
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
Hon'ble Apex Court awarded a sum of Rs.50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC).
Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances since petitioner lost his brother, he is awarded Rs.50,000/- towards loss of love and affection and Rs.25,000/- towards funeral expenses. Further, the petitioner shall be entitled to interest @ 9% per annum on the award amount as held by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
167. The petitioner/claimant is accordingly entitled to compensation computed as under:
Loss of estate Rs.93,690/-
Loss of Love and affection Rs.50,000
Funeral Expenses Rs.25,000/-
________________
Total Rs.1,68,690/-
________________
(Rupees One Lakh Sixty Eight Thousand Six Hundred & Ninety Only) Page No.227 of 313 The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 16.08.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
168. On realization, 25% shall be released to the petitioner and remaining 75% shall be kept in five equal FDRs with a nationalised bank for a period of one year, two years, three years, four years and five years respectively without the facility of loan, advance or premature withdrawal with release of quarterly periodical interest in his account.
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169. CASE-Y Suit No.456/11 Unique Case ID No.02401C-0886212007 Atul Kumar Sharma S/o Late Sh.Jagdish Kumar Sharma Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage tour in Himachal Pradesh since 17.06.2007 and received injuries in the accident on 20.06.2007. Petitioner was admitted at Dr. Rajinder Prasad Medical College, at Tanda District Kangra after the accident and discharged on the same day. It is further the case of Page No.228 of 313 the petitioner that subsequent treatment continued at Delhi. It is further claimed that petitioner was self employed/running a taxi business in the name of Skylark Services at B-36 West Patel Nagar and earning about Rs.10,000/- per month. Compensation is claimed for Rs.5,00,000/-.
170. Vide order dated 09.01.2008 following consolidated issues were framed by the ld. Predecessor:
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no. DL 1PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
171. In support of the claim, petitioner was examined as PW1.
Page No.229 of 313PW1 Atul Kumar sharma testified on the lines of the claim petition and proved copy of his election I-card (Ex.PW1/1) and attested copy of MLC (Ex.PW1/2).
During cross-examination, he deposed that driver of the bus was driving the vehicle at a high speed in a rash and negligent manner despite being warned by several passengers to drive carefully. Further, he was awake at the time of the accident and had sustained injuries on head and lips. He further stated that he had not filed any proof regarding his income.
172. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
The injuries sustained by the petitioner have been described in the MLC (Ex.PW1/2) as follows:
"1. cut injury on left side of forehead and scalp, 5-6 cm. in length fresh bleeding.
2.C/o pain in chest and back.
Advised X-Ray Chest and dorsolumbar spine Final opinion to be given after surgical consultation and Radiologist opinion."
It may be noticed that neither doctor has been Page No.230 of 313 examined to prove the nature of injuries nor any other treatment paper has been filed to assess if the nature of injuries was grievous. However, judicial notice can be taken of the fact that the petitioner must have remained under trauma and suffered pain and suffering as a result of injuries sustained in the accident. Also, expenses must have been incurred on conveyance from Kangra to Delhi. Considering the facts and circumstances petitioner is awarded compensation of Rs.15,000/- towards pain and suffering and injuries sustained in the accident. Also, a sum of Rs.5,000/- is awarded towards diet and conveyance.
No separate medical bills have been filed on record towards medical expenses/treatment.
173. As discussed above, the overall compensation is tabulated as under:
Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
Medical Bills ---NIL---
--------------------
Total Rs.20,000/-
----------------------------
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 01.09.2007 till realization.
174. On realization, entire compensation amount along Page No.231 of 313 with up-to-date interest shall be released to the petitioner. *********************************************
175. CASE-Z Suit No.457/11 Unique Case ID No.02401C-1465162008 Sanjay Kumar Jain S/o Late Sh.Deep Chan Jain (Brother) Rakesh Kumar Jain S/o Late Sh.Deep Chan Jain (Brother) Versus Raj Singh @ Nasir Ali & Ors.
As per case of petitioners, their sister late Manjula Jain aged about 50 years was travelling in bus no.DL 1PC 7676 along with other passengers on a pilgrimage since 17.06.2007 and received fatal injuries in the accident on 20.06.2007. It is further the case of petitioners that the deceased was employed as Assistant in Central Social Welfare Board, Govt. of India, B-12, Qutub Institutional Area, New Delhi - 110 016 and was drawing a salary of Rs.16,000/- per month. Petitioners (Sanjay Kumar Jain aged about 51 years and Rakesh Kumar Jain aged about 52 years) who are the real brothers of the deceased claim to be wholly dependent upon the deceased Manjula Jain. Compensation is claimed for a sum of Rs.20,00,000/-.
176. Vide order dated 09.01.2008 following issues were framed by the ld. Predecessor:
Page No.232 of 313(i) Whether the deceased Manjula Jain had sustained fatal injuries on 20.06.2007 at about 11.00PM at Bamukan Kentchi More, PS Dharamshala, HP due to rash and negligent driving of Respondent No.1 Shri Nasir Ali @ Raj Singh while driving bus bearing registration no.DL 1 PC 7676?
(ii) Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
(iii) Relief.
177. In support of the claim petition, three witnesses were examined, namely PW1 Rakesh Kumar Jain, PW2 ASI Mohinder Singh, P.S. Dharamshala and PW3 Shri S.C. Ahuja, Assistant, Central Social Welfare Board to prove the salary of the deceased.
PW1 Rakesh Kumar Jain testified on the lines of the claim petition and stated that petitioners were wholly dependent upon the deceased as they are the only legal representatives/next kith and kin of deceased and there is nobody to look after them after the death of the deceased. PW1 further proved death certificate of the deceased Manjula Jain (Ex.PW1/1), election I-card of deceased (Ex.PW1/2), copy of ration card (Ex.PW1/3), copy of election I-card of deponent Page No.233 of 313 (Ex.PW1/4), certified copy of FIR (Ex.PW1/5), attested copy of postmortem (Ex.PW1/6), copy of funeral receipt (Ex.PW1/7), photocopy of pay slip (Mark A).
During cross examination, he clarified that he is not an eyewitness to the accident. Further, his other brother is a teacher. He was residing at the ground floor while his brother was staying at first floor. He further stated that he had not placed on record any document that his sister had given any part of her salary to him or the other brother. He volunteered that deceased used to withdraw cash and then used to handover to them. He further deposed that both the brothers are married and having joint families. He further admitted that in the ration card (Ex.PW1/3), there was no mention of the families of the brother as well as deceased sister. He volunteered that in order to get more ration, separate ration cards were prepared at the same address. He further stated that he had joined service in 1983.
PW2 ASI Mohinder Singh, PS: Dharamshala is a common witness examined in all the cases who proved the attested copies of criminal case record (Ex.PW2/1 colly).
PW3 Shri S.C. Ahuja, Assistant, Central Social Welfare Board stated that deceased was employed as an Assistant and proved the Appointment Letter (Ex.PW3/1), increment orders (Ex.PW3/2 - 11 sheets colly.), copies of pay- bill register (Ex.PW3/3), arrears of 6 th pay commission (Ex.PW3/4), salary certificate (Ex.PW3/5) and pay slip for the month of May, 2007 (Ex.PW3/6).
Page No.234 of 313178. Issue No. (ii) To what amount of compensation the claimants are entitled to and from whom?
Counsel for petitioner contended that the income of the deceased be assessed at Rs.16,000/- per month and further addition towards future prospects be made for purpose of assessment of loss of dependency. Further, after deduction of 1/3 towards personal expenses, the relevant multiplier be applied. Counsel for the petitioner also referred to judgments passed by MACT Tribunal, Karkardooma Courts (MAC Petition No.166F/13 decided by Ms. Ravinder Bedi, PO, MACT on 13.08.2015).
In the present case, it may be noticed that the claim has been filed by the brothers of the deceased as the only legal representatives of the deceased and claiming that they were fully dependent upon the income of the deceased. The petitioners were aged about 51 & 52 years at the time of filing of the petition and the deceased was aged about 50 years at the time of accident. However, it may be observed that during cross- examination, PW1 Rakesh Kumar Jain admitted that his other brother is a teacher while he had himself joined service in the year 1983. He further stated that both the brothers are married and having joint families. It appears that the ration card in the name of petitioner no. 2 is also separately made which does not reflect the family of the other brother. In the facts and circumstances, it does not appear to be plausible that the Page No.235 of 313 petitioners were dependent upon the income of the deceased. Rather, it appears that the petitioners being independently employed were financially independent and running their own families after their marriage. As such, there is no cogent evidence on record to infer that the petitioners were financially dependent upon the deceased. In the aforesaid circumstances, I am of the considered opinion that the compensation has to be calculated for loss to estate and not for loss of dependency as held in Dinesh Adhlak vs. Pritam Singh & Ors. ILR (2010) V Delhi 463 (MAC Appeal No.253/07 decided on 15.01.2010 by Hon'ble Mr. Justice J.R. Midha).
In Dinesh Adhlak (supra), deceased (wife of the petitioner) aged about 31 years was working as a teacher while her husband aged 34 years was working as a teacher at Jesus and Merry College and was not financially dependent upon the deceased. It was held by the Hon'ble High Court that the husband is entitled to compensation for loss to estate and not for loss of dependency since he was not financially dependent upon the deceased. It may also be appropriate to quote the relevant principles as settled in A. Manavalagan vs. A. Krishnamurthy & Ors., 2005 ACJ 1992 by the Hon'ble Karnataka High Court and were also referred in Dinesh Adhlak (supra).
"19 (iv). The procedure for loss of estate is broadly the same as procedure for determination for loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependents claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand Page No.236 of 313 in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases".
" 20 (v)........Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependents) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non- dependent spouse/children/parents. Where the claimants are non-dependent brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants."
179. In the light of aforesaid principles, the loss to estate is assessed as under:
(a) Income of Deceased As per the pay slip for the month of May, 2007 (Ex.PW3/6) Kumari Manjula Jain working as Assistant, Employee Code 166 was drawing a salary of Rs.15,312/- per month. The fact that the deceased was working as an Assistant is also corroborated by the Appointment Letter (Ex.PW3/1) and other service record Ex.PW3/2 & Ex.PW3/3. The deceased is also stated to have received arrears of 6 th pay commission as per Ex.PW3/4 & Ex.PW3/5 for Rs.86,056/- for the period 01.01.2006 to 20.06.2007. In the facts and circumstances, the income of the deceased for purpose of assessment of Page No.237 of 313 compensation is taken as Rs.15,313/- as per pay slip for the month of May, 2007 (Ex.PW3/6).
(b) If addition in income towards future prospects is to be made As per the voter's I-card of deceased Manjula Jain, as on 0.01.1994 she was aged about 38 years. In view of above, her age on the date of accident was above 51 years.
In Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Hon'ble Apex Court held as under:-
"38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002], this Court has noted the ear-
lier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Sarla Dixit [(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p.
134):
"24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an ad- dition of 50% of actual salary to the actual salary in-Page No.238 of 313
come of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the de- ceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calcu- lation being adopted. Where the deceased was self-em- ployed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the de- ceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean ac- tual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without pro- vision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
In the instant case, having regard to the dicta in Sarla Varma's case (supra) since the deceased aged about 51 years was permanently employed, addition of 15% towards future prospects is to be made for purpose of assessment of income. The income for purpose of compensation is accordingly Page No.239 of 313 computed as Rs.15,313/- + 15% = Rs.17,609.95/- per month (Rounded off to Rs.17,610/-).
(c) Selection of multiplier:
The deceased was aged about 51 years at the time of accident. As per Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, multiplier of 11 would be applicable for the purpose of assessment of compensation.
(d) Keeping in view the principles as referred in the case of A. Manavalagan vs. A. Krishnamurthy & Ors., 2005 ACJ 1992 (supra), since the petitioners are the non-dependent brothers claiming on behalf of the estate, the savings has to be taken 15% of the income of the deceased for purpose of assessment of compensation.
(e) Loss of Estate In the facts and circumstances, loss of estate at 15% of the income of the deceased applying the multiplier of 11 is computed as Rs.3,48,678/- {Rs.17,610/- (monthly income after addition of 15% towards future prospects) X 12 (months) X 11 (multiplier) X 15%}. The same is rounded off to Rs.3,49,000/-.
180. Compensation under non-pecuniary heads:
Though a wide discretion in determination of compensation is given but the amplitude of such powers has to be exercised in consonance with settled principles and it needs Page No.240 of 313 to be borne in mind that compensation is neither expected to be windfall or bonanza or source of profit but at the same time should not be pittance.
It has been held by the Hon'ble Apex Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 that the compensation is to be awarded for a sum of Rs.1 lakh each towards loss of love and affection and loss of consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/- towards loss of estate.
Hon'ble Apex Court awarded a sum of Rs.50,000/- to each parent for loss of love and affection in M. Mansoor v. United India Insurance Co. Ltd., 2013 ACJ 2849 (SC). Further, interest @ 9% per annum was awarded on the award amount by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
Considering the facts and circumstances, petitioners (who are the real brothers of deceased) are awarded Rs.50,000/- each towards loss of love and affection and Rs.25,000/- towards funeral expenses. Further, the petitioners shall be entitled to interest @ 9% per annum on the award amount as held by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC).
181. The petitioners/claimants are accordingly entitled to compensation computed as under:
Loss of estate Rs.3,48,678/-
(Rounded off to Rs.3,49,000/-)
Page No.241 of 313
Loss of Love and affection (Rs.50,000/- each) Rs.1,00,000/-
Funeral Expenses Rs.25,000/-
________________
Total Rs.4,74,000/-
________________
(Rupees Four Lakh Seventy Four Thousand Only) The claimants/petitioners are also entitled to interest @ 9% p.a. from the date of filing of petition i.e. w.e.f. 16.08.2007 till realization.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
182. For purpose of disbursement, petitioner no. 1 & 2 shall be entitled to 50% each of the award amount along with proportionate interest thereon.
On realization, 25% shall be released to each of the petitioners and remaining 75% shall be kept in five equal FDRs with a nationalised bank for a period of one year, two years, three years, four years and five years without the facility of loan, advance or premature withdrawal with release of quarterly periodical interest in their respective account.
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183. CASE-Z1 Suit No.259/11 Unique Case ID No.02401C-0886502007 Sh. Hari Om Mahna S/o Sh. Shadi Lal Mahna Versus Page No.242 of 313 Raj Singh @ Nasir Ali & Ors.
In brief, petitioner was travelling in bus no.DL 1PC 7676 along with his wife Smt. Shalu Mahna and daughter Aastha Mahna on a pilgrimage since 17.06.2007 and received grievous injuries in the accident on 20.06.2007. Wife and daughter of petitioner also suffered injuries and separate claim petitions bearing Suit No.257/11 & 260/11 have been preferred on their behalf. Petitioner was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP after the accident on 20.06.2007 and thereafter shifted to Dr.RML Hospital, New Delhi on 22.06.2007 wherein he remained admitted till 25.06.2007. It is further the case of petitioner that he was employed at AKM Alliance, Janakpuri, Delhi and earning Rs.10,000/- per month. Compensation is claimed for a sum of Rs.40,00,000/-.
184. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor:-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions Page No.243 of 313 and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
185. In support of the claim petition preferred in Suit No.257/11 in respect of injuries sustained by Baby Astha Mahna; in respect of injuries suffered by Hari Om Mahna (Suit No.259/11) and in respect of injuries suffered by Shalu Mahna (Suit No.258/11), four witnesses were examined as placed in Suit No.259/11 (Hari Om Mahna) namely, PW1 Hari Om Mahna, PW2 Shalu Mahna, PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain. PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain proved the disability certificate in respect of injuries sustained by Hari Om Mahna and Shalu Mahna respectively.
PW1 Hari Om Mahna led his examination-in-chief by way of affidavit in respect of the accidental injuries received by him (in Suit No.259/11) and injuries received by his daughter Baby Aastha Mahna (in Suit No.257/11). He testified on the lines of claim petition and further proved original bills regarding his treatment (Ex.PW1/1 colly 8 sheets), discharge summary and entire treatment record of Hari Om Mahna Page No.244 of 313 (Ex.PW1/2 colly 15 sheets), photocopy of his passport (Ex.PW1/3), photocopy of school I-card of Astha Mahna (Ex.PW1/4), attested copy of FIR (Ex.PW1/5), attested photocopies of MLCs of Hari Om Mahna (Ex.PW1/6) and salary slip (Mark A). He further proved the disability certificate issued by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that he had suffered loss of vision. He further testified that he was employed at AKM Alliance and was earning about Rs.10,000/- per month.
He further testified that Baby Astha Mahna, who was a student also sustained injuries in the accident as stated in the affidavit.
On cross-examination, he deposed that he had not filed any record regarding appointment letter or to show his educational qualifications. Further, he had not placed any record of salary received by cheque. However, he clarified that he used to receive salary by cash without any signatures. He further admitted that he had taken maximum treatment from Dr. R.M.L. Hospital and documents were not placed to show the expenses incurred on maid servant/doctor. He further admitted that he was working with the same employer after the accident and his salary had also increased after the accident. Further, he was not taking the help of others for doing routine work. He also deposed that there were 29-30 passengers in the bus apart from 5-6 children and was sitting on the first seat of the bus.
PW2 Shalu Mahna testified on the lines of claim petition (Suit No.260/11) and further relied upon original medical Page No.245 of 313 treatment bills (Ex.PW2/1 collectively 15 sheets), discharge summary and entire treatment record (Ex.PW2/2-collectively 19 sheets), income proof regarding employment (Ex.PW2/3), photocopy of passport (Ex.PW2/4), attested copy of FIR (Ex.PW2/5) and attested photocopies of MLC (Ex.PW2/6).
PW3 Dr. Deepak Verma proved the disability certificate in respect of petitioner Hariom Mahna (Ex.PW1/7 with respect to Suit No.259/11). He further testified that the petitioner had suffered 20% visual permanent disability.
On cross-examination, he testified that Hari Om Mahna was not under his treatment. Further, Hari Om Mahna can perform all normal functions but his ability to do has been reduced as compared to a normal person. He further deposed that he could not say about the functional disability and denied the suggestion that petitioner had not suffered any visual impairment and is performing all normal functions.
PW4 Dr.Anurag Jain proved the disability certificate of Shalu Mahna (Ex.PW4/1 with respect to Suit No.259/11) and stated that she had suffered 12% temporary physical disability in relation to left lower limb.
On cross-examination, he stated that patient is having pain and deformity in left ankle and has difficulty in prolong walking. However, petitioner will not have any problem in standing. He further clarified that the disability is temporary at the time of examination which may change in future and may lead to degenerative arthritis.
Page No.246 of 313186. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, Page No.247 of 313 R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Page No.248 of 313Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by him due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Counsel for petitioner contended that at the time of accident, petitioner Hari Om Mahna was employed with A.K.M. Alliance, 703 Vishal Tower, Janakpuri, Delhi and earning Rs.10,000/- per month. Reliance was also placed upon photocopies of payment advice for the month of January & February, 2006 (Mark A) issued by Team HR Services Pvt. Ltd.
It may be observed that apart from filing of mere photocopies of payment advice, no witness from the concerned employer was examined on behalf of the petitioner to prove the salary. Further, petitioner during his cross-examination admitted that he had not filed any record relating to appointment letter and educational qualifications. In the facts and circumstances, bald statement of the petitioner on the point of income/salary cannot be accepted and the same is assessed on notional basis as per minimum wages of an unskilled worker as notified by Government of NCT of Delhi for the relevant period @ Page No.249 of 313 Rs.3,470/- per month for purpose of assessment of compensation.
(b) If addition in income towards future prospects is to be made Petitioners have claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 38 years but the same has been vehemently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary".
Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till Page No.250 of 313 such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
In view of aforesaid legal position as settled by the Hon'ble High Court, since the petitioner was not permanently employed and income has been assessed on notional basis on minimum wages, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, functional disability may be considered as 50% though the same was assessed as 20% by the Medical Board as per Disability Certificate dated 02.01.2012 (Ex.PW1/7).
On the other hand, counsel for insurance company contended that there was no functional disability since during cross-examination PW1 stated that he had been working with the same employer and his salary had also increased after the accident. Further, petitioner also deposed that he was not taking help of others for doing all routine work.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less Page No.251 of 313 permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability as discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of Page No.252 of 313 employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the instant case, petitioner has relied upon Disability Certificate dated 02.01.2012 (Ex.PW1/7) issued by Medical Board, Deen Dayal Upadhyay Hospital, New Delhi wherein it has been observed as under:
"..........is suffering from visual disability 20% (Twenty Percent) Permanent.
................................"
In the aforesaid context, testimony of PW3 Dr. Deepak Verma may also be noticed whereby he deposed that the petitioner can perform all normal functions but his ability to do Page No.253 of 313 has been reduced as compared to a normal person. He further denied the suggestion that the petitioner had not suffered from any visual impairment.
I am of the considered opinion that testimony of PW3 in the light of Disability Certificate clearly reflects that ability of petitioner to perform work as compared to a normal person has been reduced even if he was performing functions without any assistance. Further, merely because the salary in the present employment had increased, does not lead to an inference that the visual ability of the petitioner had not been affected. The prospects of the petitioner to perform the jobs requiring 100% visual ability definitely reduced by 20% which would affect his earning capacity in any other job. In the facts and circumstances and the principles laid down in Raj Kumar Vs. Ajay Kumar, (supra), I am inclined to consider the functional disability as 20% for purpose of assessment of compensation qua the entire body.
As per copy of Passport (Ex.PW1/3), date of birth of the petitioner is 05.12.1968. As such, the age of petitioner on the date of accident was about 38 years 06 months 15 days approximately. As per Sarla Verma & Ors. v/s Delhi Transport Corporation 2009, ACJ 1298, the multiplier of 15 is applicable for the purpose of assessment of compensation.
The loss of earning capacity is accordingly calculated as Rs.1,24,920/- {i.e. Rs.3,470/- (notional income per month) X 12 (months) X 20% (functional disability) X 15 (applicable multiplier according to age)}.
Page No.254 of 313(d) Loss of Income on account of accident As per medical record, immediately after the accident, petitioner was admitted at Dr. Rajendra Prasad Govt. Medical College Hospital, Kangra, Tanda (HP) on 21.06.2007 and discharged on the same day. Thereafter, petitioner was shifted to Dr. R.M.L. Hospital, New Delhi wherein he remained admitted from 22.06.2007 to 25.06.2007 and even thereafter remained under continuous treatment as he suffered fracture base of acromia right scapula, left vitrus eye # zygoma.
Considering the nature of injuries, treatment undertaken, disability suffered by the petitioner and period of admission as indoor patient, it can be reasonably presumed that on account of injuries and disability, the petitioner may not have been in a position to attend his work for a period of about eight months as he continued to obtain medical treatment till 19.03.2008.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.27,760/- for a period of six months for which he was not able to perform his job i.e. {Rs.3,470/- (notional income for one month) X 08 months}.
(e) Loss of amenities and loss of expectation of life due to Permanent Disability The amount of compensation towards amenities should be to bring amenities and restoration of health to the petitioner. In the facts and circumstances, considering the permanent visual disability of 20% suffered by the petitioner which is unlikely to improve, he is awarded a sum of Page No.255 of 313 Rs.1,00,000/- (Rupees One Lakh Only) on account of loss of amenities and loss of expectation of life due to permanent disability.
(f) Pain and Suffering & Mental Agony As the petitioner suffered permanent visual disability of 20% and remained incapacitated from performing normal activities throughout his life, he is awarded a sum of Rs.1,00,000/- Rupees One Lakh only) towards pain and suffering and mental agony.
(g) Medicines and Medical Treatment Counsel for petitioner contended that an amount of Rs.3,824/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.3,824/- towards medical bills/treatment.
(h) Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount towards conveyance during the period of treatment and for being shifted from Kangra to Delhi. In view of above, an amount of Rs.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance.
Petitioner is further awarded an amount of Page No.256 of 313 Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet.
(i) Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
Since the petitioner/injured had suffered fracture as well as visual impairment resulting in disability, he would have required the constant aid of an attendant for the active period of treatment which has been assessed as eight months.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.24,000/- (Rupees Twenty Four Thousand Only) is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.3,000/- X 08 months).
187. As discussed above, the overall compensation is tabulated as under:
Page No.257 of 313Loss of Earning Capacity Rs.1,24,920/- Loss of Income on Account of accident Rs.27,760/- Loss of amenities and loss of expectation of life Rs.1,00,000/-
Pain and Suffering Rs.1,00,000/-
Medicines & Medical Treatment Rs.3,824/-
Conveyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.24,000/-
-----------------
Total Rs.4,20,504/-
____________
(Rounded off to Rs.4,21,000/-)
(Rupees Four Lakh Twenty One Thousand only ) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 01.09.2007.
188. On realization, Rs.2,00,000/- (Rupees Two Lakh Only) shall be released to the petitioner and remaining amount shall be fixed deposited in seven fixed deposits of equal amounts in his name with a nationalized bank for a period of one year, two years, three years, four years, five years, six years and seven years without the facility of loan, advance or premature withdrawal with release of quarterly interest in his account.
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189. CASE-Z2 Suit No.257/11 Unique Case ID No.02401C-0886322007 Baby Aastha Mahna D/o Sh. Hari Om Mahna Page No.258 of 313 Versus Raj Singh @ Nasir Ali & Ors.
In brief, Baby Aastha (student) aged about 07 years was travelling in bus no.DL 1PC 7676 along with her parents Sh.Hariom Mahna and Smt. Shalu Mahna on a pilgrimage since 17.06.2007 and received severe injuries in the accident on 20.06.2007. Parents of the petitioner also suffered injuries and separate claim petitions bearing Suit No.260/11 & 259/11 have been preferred. Petitioner was admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP on 20.06.2007 after the accident and discharged on the same day. It is further claimed that petitioner was further treated at Delhi and a sum of Rs.10,000/- had been incurred on her treatment. Compensation is claimed for a sum of Rs.2,00,000/-.
190. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor :-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on Page No.259 of 313 account of rash and negligent driving of Respondent No.1 of bus bearing registration no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
191. In support of the claim petition preferred in Suit No.257/11 in respect of injuries sustained by Baby Astha Mahna; in respect of injuries suffered by Hari Om Mahna (Suit No.259/11) and in respect of injuries suffered by Shalu Mahna (Suit No.258/11), four witnesses were examined as placed in Suit No.259/11 namely, PW1 Hari Om Mahna, PW2 Shalu Mahna, PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain. PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain proved the disability certificate in respect of injuries sustained by Hari Om Mahna and Shalu Mahna respectively.
PW1 Hari Om Mahna led his examination-in-chief by way of affidavit in respect of the accidental injuries received by him (in Suit No.259/11) and injuries received by his daughter Baby Aastha Mahna (in Suit No.257/11). He testified on the lines of claim petition and further proved original bills regarding his treatment (Ex.PW1/1 colly 8 sheets), discharge summary and entire treatment record of Hari Om Mahna (Ex.PW1/2 colly 15 sheets), photocopy of his passport (Ex.PW1/3), photocopy of school I-card of Astha Mahna Page No.260 of 313 (Ex.PW1/4), attested copy of FIR (Ex.PW1/5), attested photocopies of MLCs of Hari Om Mahna (Ex.PW1/6) and salary slip (Mark A). He further proved the disability certificate issued by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that he had suffered loss of vision. He further testified that he was employed at AKM Alliance and was earning about Rs.10,000/- per month.
He further testified that Baby Astha Mahna, who was a student also sustained injuries in the accident as stated in the affidavit.
On cross-examination, he deposed that he had not filed any record regarding appointment letter or to show his educational qualifications. Further, he had not placed any record of salary received by cheque. However, he clarified that he used to receive salary by cash without any signatures. He further admitted that he had taken maximum treatment from Dr. R.M.L. Hospital and documents were not placed to show the expenses incurred on maid servant/doctor. He further admitted that he was working with the same employer after the accident and his salary had also increased after the accident. Further, he was not taking the help of others for doing routine work. He also deposed that there were 29-30 passengers in the bus apart from 5-6 children and was sitting on the first seat of the bus.
PW2 Shalu Mahna testified on the lines of claim petition (Suit No.260/11) and further relied upon original medical treatment bills (Ex.PW2/1 collectively 15 sheets), discharge summary and entire treatment record (Ex.PW2/2- Page No.261 of 313 collectively 19 sheets), income proof regarding employment (Ex.PW2/3), photocopy of passport (Ex.PW2/4), attested copy of FIR (Ex.PW2/5) and attested photocopies of MLC (Ex.PW2/6).
PW3 Dr. Deepak Verma proved the disability certificate in respect of petitioner Hariom Mahna (Ex.PW1/7 with respect to Suit No.259/11). He further testified that the petitioner had suffered 20% visual permanent disability.
On cross-examination, he testified that Hari Om Mahna was not under his treatment. Further, Hari Om Mahna can perform all normal functions but his ability to do has been reduced as compared to a normal person. He further deposed that he could not say about the functional disability and denied the suggestion that petitioner had not suffered any visual impairment and is performing all normal functions.
PW4 Dr.Anurag Jain proved the disability certificate of Shalu Mahna (Ex.PW4/1 with respect to Suit No.259/11) and stated that she had suffered 12% temporary physical disability in relation to left lower limb.
On cross-examination, he stated that patient is having pain and deformity in left ankle and has difficulty in prolong walking. However, petitioner will not have any problem in standing. He further clarified that the disability is temporary at the time of examination which may change in future and may lead to degenerative arthritis.
Page No.262 of 313192. Issue No. (ii) Whether the petitioner is entitled to any compensation? If so to what amount and from whom?
It may be observed that for the purpose of assessment of compensation, the nature of injury, the parts of body wherein the injury was sustained, surgery if any undertaken, confinement in the hospital and duration of the treatment are considered.
The injuries sustained by Baby Astha have been described in the MLC as placed in Suit No.307/11 as follows:
"1. Abrasion on rt. thigh 3X4 cm. in size. Red in colour.
Further, the injury was opined to be simple in nature."
Judicial notice can be taken of the fact that the petitioner Baby Astha must have remained under trauma and suffered pain and suffering as a result of falling of the bus in the valley. Also, expenses must have been separately incurred on conveyance from Kangra to Delhi since both her parents had suffered severe grievous injuries. Considering the facts and circumstances, petitioner is awarded compensation of Rs.15,000/- towards pain & suffering. Also, a sum of Rs.5,000/- is awarded towards diet and conveyance.
193. As discussed above, the overall compensation is tabulated as under:
Page No.263 of 313 Loss of wages -NIL-
Pain and suffering Rs.15,000/-
Diet & conveyance Rs.5,000/-
___________
TOTAL Rs.20,000/-
__________
(Rupees Twenty Thousand Only)
The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 01.09.2007 till realization.
194. Since the injured is a minor, on realization, entire compensation amount along with up-to-date interest shall be fixed deposited in the name of Baby Astha Mahna with a nationalised bank upto the period till she attains the age of majority, without facility of advance, loan or premature withdrawal with release of periodical interest in the account of Shri Hari Om Mahna (father of Baby Astha) for benefit of minor.
****************************************
195. CASE-Z3 Suit No.260/11 Unique Case ID No.02401C-088432007 Shalu Mahna W/o Sh.Hari Om Mahna Versus Raj Singh @ Nasir Ali & Ors.
In brief, petitioner was travelling in bus no.DL 1PC Page No.264 of 313 7676 along with her husband Hari Om Mahna and daughter Aastha Mahna on a pilgrimage since 17.06.2007 and received grievous injuries in the accident on 20.06.2007. Husband and daughter of petitioner also suffered injuries and separate claim petitions bearing Suit No.259/11 & 257/11 have been preferred on their behalf . Petitioner was initially admitted at Dr.Rajender Prasad Government College Hospital, Tanda, District Kangra, HP after the accident and thereafter remained admitted at Dr. R.M.L. Hospital, Delhi from 26.06.2007 to 29.06.2007. It is further the case of petitioner that she was employed as a teacher at Nava Hind Educational Society, Rohtak Road, New Delhi and earned about Rs.5,200/- per month. Compensation is claimed for a sum of Rs.10,00,000/-.
196. On the pleadings of the parties, following issues were framed for consideration vide order dated 09.01.2008 by ld. Predecessor:-
(i) Whether the petitioner Baldev Raj, Sanjeev Gulati, Sita Ram and Jatin Ahuja sustained fatal injuries. Sh.Baldev Raj Ahuja, Master Sunny Ahuja, Smt. Saroj Ahuja, Sh.Hari Om Mahna, Sh.Atul Kumar Sharma, Baby Astha Mahna, Smt.Shalu Mahna, Sh.Amol Bajaj, Smt.Bharti Bajaj and Smt. Anu Gulati sustained injuries as put forth in the petitions and medical records of the case took place on account of rash and negligent driving of Respondent No.1 of bus bearing registration Page No.265 of 313 no.DL 1 PC 7676?
(ii) To what amount of compensation the claimants are entitled to and from whom?
(iii) Relief.
197. In support of the claim petition preferred in Suit No.257/11 in respect of injuries sustained by Baby Astha Mahna; in respect of injuries suffered by Hari Om Mahna (Suit No.259/11) and in respect of injuries suffered by Shalu Mahna (Suit No.258/11), four witnesses were examined as placed in Suit No.259/11 (Hari Om Mahna) namely PW1 Hari Om Mahna, PW2 Shalu Mahna, PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain. PW3 Dr. Deepak Verma and PW4 Dr. Anurag Jain proved the disability certificate in respect of injuries sustained by Hari Om Mahna and Shalu Mahna respectively.
PW1 Hari Om Mahna led his examination-in-chief by way of affidavit in respect of the accidental injuries received by him (in Suit No.259/11) and injuries received by his daughter Baby Aastha Mahna (in Suit No.257/11). He testified on the lines of claim petition and further proved original bills regarding his treatment (Ex.PW1/1 colly 8 sheets), discharge summary and entire treatment record of Hari Om Mahna (Ex.PW1/2 colly 15 sheets), photocopy of his passport (Ex.PW1/3), photocopy of school I-card of Astha Mahna (Ex.PW1/4), attested copy of FIR (Ex.PW1/5), attested photocopies of MLCs of Hari Om Mahna (Ex.PW1/6) and salary Page No.266 of 313 slip (Mark A). He further proved the disability certificate issued by Deen Dayal Upadhyay Hospital (Ex.PW1/7) and testified that he had suffered loss of vision. He further testified that he was employed at AKM Alliance and was earning about Rs.10,000/- per month.
He further testified that Baby Astha Mahna, who was a student also sustained injuries in the accident as stated in the affidavit.
On cross-examination, he deposed that he had not filed any record regarding appointment letter or to show his educational qualifications. Further, he had not placed any record of salary received by cheque. However, he clarified that he used to receive salary by cash without any signatures. He further admitted that he had taken maximum treatment from Dr. R.M.L. Hospital and documents were not placed to show the expenses incurred on maid servant/doctor. He further admitted that he was working with the same employer after the accident and his salary had also increased after the accident. Further, he was not taking the help of others for doing routine work. He also deposed that there were 29-30 passengers in the bus apart from 5-6 children and was sitting on the first seat of the bus.
PW2 Shalu Mahna testified on the lines of claim petition (Suit No.260/11) and further relied upon original medical treatment bills (Ex.PW2/1 collectively 15 sheets), discharge summary and entire treatment record (Ex.PW2/2- collectively 19 sheets), income proof regarding employment (Ex.PW2/3), photocopy of passport (Ex.PW2/4), attested copy Page No.267 of 313 of FIR (Ex.PW2/5) and attested photocopies of MLC (Ex.PW2/6).
PW3 Dr. Deepak Verma proved the disability certificate in respect of petitioner Hariom Mahna (Ex.PW1/7 with respect to Suit No.259/11). He further testified that the petitioner had suffered 20% visual permanent disability.
On cross-examination, he testified that Hari Om Mahna was not under his treatment. Further, Hari Om Mahna can perform all normal functions but his ability to do has been reduced as compared to a normal person. He further deposed that he could not say about the functional disability and denied the suggestion that petitioner had not suffered any visual impairment and is performing all normal functions.
PW4 Dr.Anurag Jain proved the disability certificate of Shalu Mahna (Ex.PW4/1 with respect to Suit No.259/11) and stated that she had suffered 12% temporary physical disability in relation to left lower limb.
On cross-examination, he stated that patient is having pain and deformity in left ankle and has difficulty in prolong walking. However, petitioner will not have any problem in standing. He further clarified that the disability is temporary at the time of examination which may change in future and may lead to degenerative arthritis.
198. Issue No. (ii) Whether the petitioner is entitled to any Page No.268 of 313 compensation? If so to what amount and from whom?
In Raj Kumar v. Ajay Kumar & Anr., 2011 Volume 1, ACJ 1, Hon'ble Supreme Court of India observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 4 and 5 of the judgment are further extracted below as the same explains the various heads under which the compensation is to be assessed:-
"4. The provision of the Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
5. The heads under which compensation is awarded in Page No.269 of 313 personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
Now the important factors relevant for calculation of compensation consequent to accidental injuries sustained by the Page No.270 of 313 petitioner may be considered.
LOSS OF EARNING CAPACITY For purpose of assessing the loss of earning capacity, the income of the petitioner/injured needs to be assessed along with the functional disability suffered by her due to the injuries sustained in the accident.
(a) Criteria for taking income of the petitioner Counsel for petitioner contended that at the time of accident, petitioner was employed at Nava Hind Educational Society, Rohtak Road, New Delhi as a teacher and earning about Rs.5,140/- per month. Reliance was further placed upon a certificate issued by Nava Hind Educational Society, Rohtak Road, New Delhi (Ex.PW2/3).
The certificate (Ex.PW2/3) filed on behalf of the petitioner has not been disputed by the respondents. Even otherwise, the minimum salary notified by the Govt. of NCT of Delhi for a matriculate at the relevant time was Rs.3,918/- per month. The salary claimed by the petitioner does not appear to be excessive in any manner and her statement to aforesaid extent cannot be disbelieved in the light of the certificate issued by Nava Hind Educational Society, Rohtak Road, New Delhi (Ex.PW2/3). In the facts and circumstances, the income of the petitioner is assessed at Rs.5,140/- per month for purpose of compensation.
(b) If addition in income towards future prospects is to Page No.271 of 313 be made Petitioner has claimed that addition towards future prospects to the extent of 50% be made considering the fact that deceased was aged about 31 years but the same has been vehemently opposed by counsel for Insurance Company.
The observations in MAC Appeal No.544/07 decided on 06.05.2016 by Hon'ble Mr.Justice R.K.Gauba in ICICI Lombard General Insurance Company Ltd. vs. Smt. Nagina Begum & Anr. on the point of addition of future prospects may be referred.
"4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary".
Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No.956/2012 (Sunil Kumar vs. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No.189/2014 (HDFC Ergo General Insurance Co. Ltd. vs. Smt. Lalta Devi & Ors.) decided on 12.01.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court".
Page No.272 of 313In the instant case, in view of aforesaid legal position as settled by the Hon'ble High Court, since the petitioner was not permanently employed, addition of income towards future prospects cannot be made for the purpose of compensation.
(c) Functional Disability Counsel for petitioner urged that for purpose of assessment of compensation, disability may be considered at 12% as assessed by the Medical Board as per Disability Certificate dated 16.01.2012 (Ex.PW4/1) whereby it was observed to be a case of post traumatic malunited bimallelor fracture of left ankle with temporary physical disability of 12% in relation to left lower limb.
On the other hand, counsel for insurance company contended that there was no functional disability as revealed from cross-examination of PW Dr. Anurag Jain who deposed that the patient is having pain and deformity in left ankle and had difficulty in prolong walking but will not have any problem in standing. He further pointed out that the disability was only temporary at the time of examination.
It may be observed that in certain cases the permanent disability may not impact the earning capacity of the injured/victim and in such cases the victim may not be entitled to compensation towards loss of capacity on account of disability. However, in other cases even on account of less permanent disability, an injured may be completely incapacitated to carry out his vocation and as such the functional Page No.273 of 313 disability may be more than the actual disability suffered by the injured/victim. Hon'ble Supreme Court of India has elucidated with an example that if the left hand of claimant, who is driver by profession is amputated, the actual loss of earning capacity may be virtually 100%.
The observations of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar, (supra) whereby the methodology for determining the functional disability as discussed in paragraph 14 may be quoted:-
"14. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical function; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the Page No.274 of 313 actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
In the instant case, in the initial discharge card prepared at Rajender Prasad Govt. Medical College, Kangra dated 21.06.2007, the petitioner was stated to have suffered fracture dislocation left ankle. The petitioner was further treated at Dr. R.M.L. Hospital on 26.06.2007. Petitioner has further relied upon Disability Certificate dated 16.01.2012 (Ex.PW4/1) issued by Medical Board, Deen Dayal Upadhyay Hospital, Govt. of NCT of Delhi wherein it has been observed as under:
"..........A case of post traumatic malunited bimalleolar fracture of left ankle with temporary physical disability of 12% (Twelve) in relation to left lower-limb.
This disability is temporary in nature.........."Page No.275 of 313
In the aforesaid context, testimony of PW4 Dr. Anurag Jain, CMO, DDU Hospital may be noticed whereby he deposed that the patient is having pain and deformity in left ankle and had difficulty in prolong walking but will not have any problem in standing. Further, he deposed that the disability was temporary at the time of examination which is likely to change in future and may go in for degenerative arthritis.
Testimony of PW4 in the light of Disability Certificate reflects that ability of petitioner only for prolonged walk has been affected. The disability was observed to be '12% temporary physical disability' in relation to left lower limb and petitioner has not undertaken further examination/evaluation. Accordingly, the case is not of permanent disability and neither any further examination has been recommended by Medical Board. The petitioner also deposed during cross-examination that she was working with same employer after the accident and there was no reduction of salary/income. Counsel for petitioner also urged that the assessment be considered on the basis of available record in the light of testimony of PW4.
I am of the considered opinion that since the ability of the petitioner to perform normal jobs does not appear to have been permanently affected and only the disability was observed to be temporary, the compensation cannot be awarded for permanent disability/loss of amenities but only for pain and suffering for the grievous injuries suffered in the accident.
Page No.276 of 313(d) Loss of Income on account of accident As per medical record, immediately after the accident, petitioner was admitted at Dr. Rajendra Prasad Govt. Medical College Hospital, Kangra, Tanda (HP) on 21.06.2007. Thereafter, petitioner was shifted to Dr. R.M.L. Hospital, New Delhi wherein she remained admitted from 26.06.2007 to 29.06.2007 and even thereafter remained under treatment as she suffered fracture of left ankle.
Considering the nature of injuries, treatment undertaken and period of admission as indoor patient, it can be reasonably presumed that on account of injuries and disability, the petitioner may not have been in a position to attend her work for a period of about four months though she continued to obtain medical treatment till later period without being an indoor patient.
In the facts and circumstances, petitioner is accordingly awarded damages of Rs.20,560/- for a period of four months for which she was not able to perform her job i.e. {Rs.5,140/- (income for one month) X 04 months}.
(e) Pain and Suffering & Mental Agony As the petitioner suffered grievous injuries, she is awarded a sum of Rs.1,00,000/-(Rupees One Lakh only) towards pain and suffering and mental agony.
(f) Medicines and Medical Treatment Page No.277 of 313 Counsel for petitioner contended that an amount of Rs.5,240/- has been claimed towards the medical bills/treatment by the petitoiner which has not been disputed on behalf of insurance company.
Accordingly, petitioner is awarded a sum of Rs.5,240/- towards medical bills/treatment.
(g) Conveyance & Special Diet Though no conveyance bills have been filed on record by the petitioner but it can be presumed that petitioner must have spent some amount towards conveyance during the period of treatment and for being shifted from Kangra to Delhi. In view of above, an amount of Rs.20,000/- (Rupees Twenty Thousand Only) is awarded towards conveyance.
Petitioner is further awarded an amount of Rs.20,000/- (Rupees Twenty Thousand Only) towards special diet.
(h) Attendant Charges Hon'ble High Court of Delhi in DTC V/s Lalit AIR 1981 Delhi 558 held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
Further, in the case of United India Insurance Co. Ltd. V/s Rama Swamy and Others 2012 (2) T.A.C. 34 (Del.), value of gratuitous services rendered by family member of the claimant was assessed at Rs.2,000/- per month.
Since the petitioner/injured had suffered fracture Page No.278 of 313 resulting in temporary physical disability, she would have required the constant aid of an attendant for the active period of treatment which has been assessed as four months.
I am of the considered view that even if the gratuitous services were rendered by some or the other family members, the claimant cannot be deprived of its benefit on the gain of the tortfeasor. Considering the nature of injuries, the compensation of Rs.12,000/- (Rupees Twelve Thousand Only) is awarded in lump-sum towards the attendant charges/gratuitous services rendered by the family members (i.e. Rs.3,000/- X 04 months).
199. As discussed above, the overall compensation is tabulated as under:
Loss of Earning Capacity Rs.NIL
Loss of Income on Account of accident Rs.20,560/-
Pain and Suffering Rs.1,00,000/-
Medicines & Medical Treatment Rs.5,240/-
Conveyance Charges Rs.20,000/-
Special Diet Rs.20,000/-
Attendant Charges Rs.12,000/-
-----------------
Total Rs.1,77,800/-
_____________
(Rounded off to Rs.1,78,000/-)
(Rupees One Lakh Seventy Eight Thousand Only) The claimant/petitioner is also entitled to interest @ 9% p.a. from the date of filing of claim petition i.e. w.e.f. 01.09.2007.
Page No.279 of 313200. On realization, Rs.1,00,000/- (Rupees One Lakh only) shall be released to the petitioner while the remaining amount shall be kept in five fixed deposits in the name of petitioner with a nationalized bank for a period of one year, two years, three years, four years and five years respectively without the facility of advance, loan or premature withdrawal with release of quarterly periodical interest in her account.
*************************************** Liability to Satisfy the Award
201. Counsel for Respondent No.3 New India Assurance Company Ltd. contended that since driver of the offending vehicle Raj Singh @ Nasir Ali was not in possession of a valid driving licence to drive a bus which was further found to be fake, the insurance company cannot be fastened with liability to pay the compensation. It was urged that higher burden was placed upon Respondent No.2 to ensure that the licence possessed by the driver was valid since he had been in transport business for long and further the vehicle was deputed to be driven in a hilly area without the licence bearing any endorsement from the licencing authority.
Reference was further made to Rule 185 (d) of the Himachal Pradesh Motor Vehicles Rules which provides that the driver shall not drive a public service vehicle on any hill road unless his licence has been enclosed "for driving on hill roads"
by the registering authority. Further, the explanation to Rule 185 Page No.280 of 313 clarifies that the "hill road" shall mean all roads in the State except those roads which may be declared by the government by a notification in the official gazette.
Reliance was also placed upon statement of R3W1 Pramod Kumar, Clerk, RTO Office, Agra, UP who proved that the driving licence bearing no.407 was issued in the name of Ravi Kumar Aggarwal S/o R.C. Aggarwal, R/o Karamyogi, Club, Kamla Nagar, Agra, UP which was valid for motorcycle and LMV driving and not issued in the name of Nasir Ali S/o Abdul Karim in the year 2005. It was further contended that respondent no.2 committed breach of terms of policy since 37 passengers were carried exceeding the carrying capacity of the bus which was built to carry 29 passengers apart from driver and conductor. It was further urged that since respondent no.2 violated the terms and conditions of the policy as well as permit, the insurance company could not be fastened with the liability to pay the compensation. Reliance was further placed upon National Insurance Company Ltd. vs. Anjana Shyam & Ors. IV (2007) ACC 355 (SC); MAC APP. 172/2011 National Insurance Co. Ltd. v. Prakash Chand & Ors. decided by Hon'ble Mr. Justice G.P. Mittal on 9th January, 2015; Sardari & Ors. v. Sushil Kumar & Ors., II (2008) ACC 426 (SC); New India Assurance Co. Ltd. v. Kusum & Ors., II (2010) ACC 518 (SC) and United India Insurance Co. Ltd. v. Sujata Arora and others, 2013 ACJ 2129.
202. On the other hand, counsel for Respondent No.2 vehemently disputed the liability of Respondent No.2/owner of Page No.281 of 313 the offending vehicle and submitted that the forgery, if any, in the driving licence could not have been detected by the owner of the offending vehicle and there was no willful and conscious default on the part of Respondent No.2. Further, it was denied that the passengers in excess of the carrying capacity of the bus travelled at the time of the accident.
It was also pointed out that PW4 Anu Gulati during her cross-examination clarified that there were 23 adults and 06 children and about 02-03 seats were lying vacant. It was also submitted that Smt.Bimla Ahuja (petitioner in Suit No.192/11, 193/11 & 195/11) in her statement also clarified that the bus had been hired by her husband but no individual tickets were issued and the bus did not carry passengers more than the carrying capacity.
Reliance was further placed upon judgment passed by Hon'ble Uttarakhand High Court in United India Insurance Company Ltd. v. Prem Bisht and Anr. 2008 ACJ 1057 decided on 27.02.2007 to contend that even in absence of endorsement to drive the vehicles in hills, licence cannot be held to be invalid and the insurance company would remain liable.
Reference was also made to Lakhmi Chand vs. Reliance General Insurance, Civil Appeal Nos. 49-50 of 2016 decided by Hon'ble Supreme Court on 07 January, 2016 (Bench Hon'ble Mr. Justice T.S.Thakur and Hon'ble Mr.Justice V.Gopala Gowda); Sheela Rani vs. National Insurance Co. Ltd., MAC APP. 701/2012 decided by Hon'ble Mr. Justice R.K. Gauba on 01st March, 2016 (Delhi High Court); Oriental Insurance Company Ltd. vs. Smt. Devki Devi Page No.282 of 313 and Others decided by Hon'ble Mr. Justice Servesh Kumar Gupta (Uttaranchal High Court) on 09 May, 2016; S. Iyyapan vs. M/s United India Insurance Company Ltd. and Another, Civil Appeal No.4834 of 2013 passed by the Hon'ble Supreme Court on 01 July, 2013 and Pepsu Road Transport Corporation vs. National Insurance Company, (2013) 7 SCC
217.
203. In the instant case, Respondent No.2 M/s Pritpal Bus Service led evidence of three witnesses namely R2W1 Harvinder Singh Oberoi/proprietor Pritpal Bus Service, R2W2 Sh.Santosh Kumar Dealing Assistant, District Transport Authority, Rajpur Road, New Delhi and R2W3 Sh.Sampat Naik, MLO, Transport Authority, Burari.
R2W1 Harvinder Singh Oberoi (owner of the offending vehicle) testified that he was running travel agency in the name of M/s New Pritpal Bus Service, situated 6/1, Prem Nagar, Tilak Nagar, New Delhi-18 and was holding a valid driving licence for driving a heavy motor vehicle since 1981. Further respondent no.1 Raj Singh approached him somewhere in June 2006 for appointing him as driver for bus. He had seen the driving licence of respondent no.1 which appeared to be genuine and respondent no.1 was thereby authorised to drive motorcycle/light motor vehicle, transport vehicles and PSV. The said licence was seized by the police, PS Dharamsala in case FIR No.125/07. Further he had taken the driving licence of respondent no.1 and on being satisfied with the driving sense, Page No.283 of 313 respondent no.1 was appointed as a driver. On receiving information regarding the accident at Dharamshala he had reached the site of accident. He further deposed that the bus was mechanically fit to run on the road and was purchased in the year 2005. Further he was in possession of All India Tourist permit. He further proved the copy of RC (Ex.R2W1/1), original Insurance policy (Ex.R2W1/2), attested copy of FIR (Ex.R2W1/3), original receipt of road tax of Delhi (Ex.R2W1/4), original road tax/permit of Himachal Pradesh (Ex.R2W1/4), original road tax/permit (Ex.R2W1/5), copy of India Tourist Permit (Mark-X), copy of fitness certificate (Mark- Y), copy of seizure memo of DL of driver of the offending vehicle (Ex.R2W1/6).
On cross-examination by counsel for The New India Assurance Company Ltd., he deposed that he was running the transport business since 1978 and had engaged 7-8 drivers. He used to retain the photocopy of the driving licence of the driver employed by him. Further the driver employed by him for the bus involved in the accident was Nasir Ali and he had not obtained any identity proof from Nasir Ali. He further stated that appointment letter was never issued by him and neither he obtained verification of driving licence of the driver. He admitted that the driving licence which was given by the driver did not bear endorsement for driving in hilly area. He further clarified that there is no provision in the UP Motor Rules where by the driver is required to have endorsement to drive in the hills on the licence. Further the vehicle was sent from Delhi to Chandigarh, Naina Devi, Baba Balak Nath, Chintpurni, Page No.284 of 313 Jwalaji, Kangra, Chamunda, Dharamsla, Meclodganj, Katra and was to return to Delhi. He further proved the contract Ex.R2W1/DX and stated that the bus owned by him was 30 seater & had given the same to the hirer. He also proved the list of passengers Ex.R2W1/DX1 and stated that the list was given to the insurance company at the time of claim but he did not know if any acknowledgment was obtained and denied the suggestion that the list was not submitted to the insurance company.
He further admitted having filed a claim case before the Consumer Forum seeking the damages for the bus and had placed the list Ex.R2W1/DX1. He further admitted that the bus had carrying capacity of 29 passengers besides one driver and conductor and the coverage was obtained for 29 passengers only. He denied that R2W1/DX and R2W1/DX1 were forged and fabricated or that he was aware that respondent no.1 was not having a valid licence.
R2W2 Santosh Kumar, Dealing Assistant, District Transport Authority, Rajpur Road, Delhi proved the permit of vehicle bearing registration No.DL 1 PC 7676 and submitted that the same was issued for the period upto 28.10.2010. He further stated that the authorisation bearing No.AITP/0462/2005 was valid from 29.10.2005 to 28.10.2006. Further the permit was valid for All India Tourist permit and proved the certified copy of the same Ex.R2W2/1.
On cross-examination he submitted that the authorisation as mentioned in para 12 as Ex.R2W2/1 is required Page No.285 of 313 to be renewed every year. Further the said authorisation was renewed for the period 04.11.2006 to 27.10.2007 and the sitting capacity has been mentioned as S.No.11 in Ex.R2W2/1.
R2W3 Sh.Sampat Naik, MLO, Transport Authority, Burari, Delhi proved the record regarding fitness of vehicle bearing registration no.DL 1 PC 7676 having chassis No.436051GUZ123782 receipt no.20088799 P valid from 28.10.2005 to 27.10.2007 (Ex.R2W3/1). He further stated that the vehicle was fit for plying on road for the aforesaid period. He further proved the attested copy of screen report in respect of vehicle No.DL 1 PC 7676 showing the details of fitness, permit number and validity, chassis number, engine number (Ex.R2W3/2) and attested computer copy of permit No.CC/ALL/HQ/00746/2005 valid from 29.10.2005 to 28.10.2010 (Ex.R3W3/3). He clarified that permit no.AITP/0462/2005 was valid from 04.11.2006 to 27.10.2007. Further the original permit was issued for five years from 29.10.2005 to 28.10.2010 and thereafter the renewal is on yearly basis from 04.11.2006 to 27.10.2007.
On cross-examination, he denied that the record produced by him was not correct. He further stated that the total capacity of the aforesaid bus was 31 persons and cannot carry more than said capacity.
204. Respondent No.3, New India Assurance Company Ltd. examined Sh.Pramod Kumar, Clerk from RTO Office, Agra U.P. (R3W1), Sh.C.N.Sharma, Administrative Officer, The New Page No.286 of 313 India Assurance Company Ltd. (R3W2).
R3W1 Sh.Pramod Kumar, Clerk from RTO Office, Agra, U.P. testified that licence bearing No.407 dated 07.01.2005 was issued in the name of Sh.Ravi Kumar Aggarwal S/o Sh.R.C.Aggarwal, R/o Karamyogi Club, Kamla Nagar, Agra U.P. The licence was valid for motorcycle and LMV (Private). The licence No.407 was not issued in the name of Nasir Ali S/o Abdul Karim in the year 2005 and proved the extract of register (Ex.R3W1/1). He further stated that he had also brought the register containing the record pertaining to licence no.2463 which was issued on 23.02.2001 in the name of Ansar Khan S/o Sh.N. Khan, R/o Ptholi, Agra, U.P. and proved the copy of the same as Ex.R3W1/2.
On cross-examination on behalf of petitioners he denied that the DL no.407/05 was issued to Nasir Ali.
R3W2 C.N.Sharma, Administrative Officer, The New India Assurance Company Ltd. testified that vehicle no.DL 1PC 7676 was insured for the period 20.11.2006 to 19.11.2007. He further testified that a notice dated 30.06.2012 U/O 12 Rule 8 CPC was issued to owner to produce the insurance policy. He further proved policy issued by the Insurance Company in favour of the insured vehicle (Ex.R3W2/1), Notice U/o 12 Rule 8 CPC issued to owner of the offending vehicle (Ex.R3W2/2), postal receipt (Ex.R3W2/3). He further stated that another notice U/O 12 Rule 8 was issued to driver and owner of the offending vehicle for production of Page No.287 of 313 original policy, DL, fitness and permit and proved the notice U/o 12 Rule 8 CPC (Ex.R3W2/4), postal receipts (Ex.R3W2/5 & Ex.R3W2/6). He further testified that another notice U/O 12 Rule 8 CPC was issued to driver and owner of the offending vehicle (Ex.R3W2/7) and further proved the postal receipts (Ex.R3W2/8 and Ex.R3W2/9).
He further testified that the insured vehicle was authroised to carry 30 passengers and premium was accordingly charged by the insurance company. However, the insured contrary to the terms of the permit was carrying 37 passengers at the time of the accident and committed the breach of the terms and permit of the policy. He further proved the certified copy of permit of the offending vehicle (Ex.R3W2/10) and copy of RC of the offending vehicle (Ex.R3W2/11).
He further testified that the Investigator Sh.Ranjan Sharma deputed by the insurance company after the investigation submitted a report (Mark A) dated 09.01.2010 whereby it was reported that 13 persons had died in the accident and 24 were injured.
He further testified that State Government had got detailed mechanical inspection report of the vehicle through Manager, HRTC, Dharamsala, who pointed out that 11 persons had died and 26 were injured. The copy of the report issued by SHO was proved as (Ex.R3W2/12). He further testified that DL bearing no.407/AG/05 possessed by Raj Singh @ Nasir Ali was found to be fake on verification. The copy of the licence was further exhibited as Ex.R2W1/13.
Page No.288 of 313205. The legal principles on the point of liability in case the driver of the offending vehicle is found to possess a fake licence as laid down in various judgments by the Hon'ble Apex Court and High Court may be noticed in first instance.
In New India Assurance Co. Ltd. v. Ranbir Singh Shastri and others, 2012 ACJ 2510 (Delhi High Court), insurance company disputed liability on the ground that driving licence produced by the driver of the offending vehicle was not issued by the concerned licencing authority and a Licencing Clerk was examined to prove that the driver of the offending vehicle had not been issued the licence by the authority. It was observed by the Hon'ble High Court "the fact that the licence of the driver of the offending vehicle was a fake one is of no avail to the insurance company in the instant case, for the reason that it is an equally well settled position of law that the insurance company in order to succeed in its defence must conclusively establish on record that the insured had 'wilfully' committed breach of the conditions of the insurance policy by permitting his vehicle to be driven by a person not holding a valid and effective driving licence." Reliance was further placed upon the judgment passed by the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC).
It was further held that for the purpose of willful breach of the policy conditions by the insured the insurer must lead evidence to prove its allegations of willful breach. If the insurer is able to establish that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence by the driver the defence of the insurer must succeed. If, Page No.289 of 313 on the other hand, the insured is able to show that he exercised reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicle by a duly licensed driver, the defence of the insurer must necessarily fail. It was further held that in the aforesaid case there was admittedly no evidence on record to show that the insured was aware of the fact that the driving licence of his driver was a fake one. The inevitable conclusion therefore is that the insurance company has failed to establish that the insured was guilty of willful breach of the policy condition with regard to the driving licence of his driver. Hence, the insurance company was held to be liable to pay the amount.
206. In Oriental Insurance Co. Ltd. v. Sudhama Prasad and others, 2012 ACJ 2797 (Delhi High Court), the liability was disputed by the insurance company since the driver was holding a fake licence and the recovery rights against the driver and owner of the offending vehicle were pressed on the ground that Motor Licencing Officer was examined to prove that the alleged driving licence produced by the driver was fake. The recovery rights were denied by the Tribunal on the ground that the insurance company failed to prove that the breach on the part of the insured was willful. The plea taken by the insurance company was dismissed by the Hon'ble High Court on the ground that the insurance company failed to lead any evidence to prove that insured committed willful breach of the terms and conditions of the policy.
Page No.290 of 313207. Reference may be further made to judgment in the case of National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), where in para 102, the Hon'ble Apex court held as follows:
"(102) The summary of our findings to the various issues as raised in these petition is as follows:
xxx xxx xxx
(iii) The breach of policy conditions, i.e., disqualification
of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the art of the owner of the vehicle, the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise) fulfills the requirements of law or not will have to be determined in Page No.291 of 313 each case."
The decision of Hon'ble Supreme Court in the case of Swaran Singh, 2004 ACJ 1 (SC), came to be considered in the case of Laxmi Narain Dhut, 2007 ACJ 721 (SC) and in the said judgment in para 11 (iii), it was observed as under:
"11 (iii)....Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time."
Hon'ble Supreme Court in the case of Pepsu Road Transport Corporation v. National Insurance Co. Ltd., 2013 ACJ 2440 (SC), after considering the decisions of the Hon'ble Apex Court in the case of Swaran Singh, 2004 ACJ 1 (SC), as well as Laxmi Narain Dhut, 2007 ACJ 721 (SC), in para 8 observed and held as under:
"(8) In a claim for compensation, it is certainly open to the insurer under section 149 (2) (a) (ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that,to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring Page No.292 of 313 the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation."
208. The principles laid down in United India Insurance Co. Ltd. v. Lehru, 2003 ACJ 611 (SC) in para 20 are also apt to be quoted:
"(20) When an owner is hiring a driver he will therefore have to check whether the driver was having a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner should then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make inquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that eh driver has a licence and is driving competently there would be no breach of section 149 (2) (a) (ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake the insurance company would continue to remain liable unless they prove that the owner-insured was aware or had notice that the licence was fake and still permitted that person to drive. More importantly even in such a case the insurance company would remain liable to the innocent third party but it may be able to recover from the insured. This is the law which has been laid down in Skandia's case, 1987 ACJ 411 (SC), Sohan Lal Passi's case, 1996 ACJ 1044 (SC) and Kamla's case, 2001 ACJ 843 (SC). We are in full agreement within the views expressed therein and see no reason to take a different view."
209. Reliance may further be placed upon New India Page No.293 of 313 Assurance Co.Ltd. v. Nafis Ahmed Abdul Razaq Ansari and others, 2015 ACJ 1955 (Division Bench judgment of Hon'ble High Court of Gujarat). In the aforesaid case, the insurance company examined the concerned RTO to prove that the driver was holding a fake driving licence and it was contended that in view of violation of conditions of insurance policy the insurance company cannot be held liable to pay the compensation. It was noticed that neither the driver nor the owner of the offending vehicle contested the claim petition and did not step into witness box. Further, the insurance company did not try to examine driver and owner of the offending vehicle as witnesses. It was held that on the aforesaid ground alone the insurance company cannot be absolved from its liability to pay the compensation since the insurance company failed to prove that the owner of the offending vehicle involved in the accident had any knowledge that driver was holding a fake licence and despite that he employed the driver and/or at the time of taking the insurance, the insurance company drew the attention of the owner that driver was having a fake driving licence and despite the same the owner did not take the proper care to verify the genuineness of the driving licence. Reliance was also placed upon the judgment of Hon'ble Supreme Court in Pepsu Road Transport Corporation v. National Insurance Co. Ltd., 2013 ACAJ 2440 (SC).
210. Now the judgments relied by the counsel for insurance company may be briefly discussed.
It may be observed that the judgment passed by Page No.294 of 313 Hon'ble Mr.Justice G.P.Mittal in MAC Appeal 172/2011 decided on 09.01.2015 National Insurance Company Ltd. vs. Prakash Chand & Ors. as relied by the counsel for insurance company reiterates the principles on the point of liability that the insurer is to prove that there was a breach on the part of insured and the onus keeps on shifting depending upon facts and circumstances of each case. The proposition of law laid down in aforesaid case is not disputed.
In II (2008) ACC 426 (SC) Sardari & Ors. vs. Sushil Kumar & Ors. relied by the counsel for insurance company, the liability of the insurer was considered in the light of the fact that insured handed over the vehicle for being driven by an unlicenced driver. It was held that insurer can avoid its liability on the ground of violation of conditions of contract of insurance. However, the present case deals with the situation wherein the licence was subsequently found to be fake on investigation but at the time of employment of driver the insured had employed the driver after taking a driving test and seeing the driving licence produced by the driver. The judgment as such is distinguishable on facts.
In II (2010) ACC 518 (SC) New India Assurance Company Ltd. vs. Kusum & Ors. relied by counsel for insurance company, the Hon'ble Apex Court observed that the owner has a duty to see that the vehicle is driven by a person having a valid driving licence. In the aforesaid case the licence of the driver of the bus was proved to be invalid and as such insurance company was absolved of the liability to pay the compensation. However, in the aforesaid case also the owner did not raise any contention Page No.295 of 313 that he had used due diligence in allowing the driver to drive the vehicle as observed in para 7. However, in the present case the owner has contended that he used due diligence in allowing the driver to drive vehicle after taking a driving test and seeing the driving licence which has been subsequently found to be false on investigation. The judgment relied by the counsel for insurance company as such is distinguishable on facts.
Similarly 2013 ACJ 2129 United India Insurance Company Ltd. vs. Sujata Arora & Ors. (SC) relied by the counsel for insurance company involved a case wherein driver of the offending vehicle was not holding a valid driving licence at the time of accident and the insurance company was exonerated. The aforesaid case also did not involve the engagement of driver by the insured after taking a driving test and seeing the driving licence which has subsequently been found to be fake, as in the present case. In view of above, the cases relied by the counsel for insurance company are distinguishable on facts and proposition of law.
In the present case, admittedly, the evidence of R3W1 Sh.Pramod Kumar, Clerk, RTO, Agra UP clearly points out that the driving licence possessed by Respondent No.1 as per the details disclosed on the licence, was not issued by the concerned authority and was fake. No evidence to the contrary has been brought on record by Respondent No.1 & 2. In view of above, an adverse inference has to be drawn that the licence possessed by Respondent No.1 was fake.
However, in order to be absolved of the liability to pay the compensation, insurance company still needs to Page No.296 of 313 establish on record that the insured had willfully committed breach of the conditions of the insurance policy by permitting his vehicle to be driven by a person not holding a valid and effective licence. It may be noticed that there is nothing on record to prove that owner of the offending vehicle was aware that the driving licence possessed by respondent no.1/driver of offending vehicle was fake at the time of engaging Respondent No.1 or the forgery could have been detected on mere examination of the licence. Testimony of Respondent No.2/R2W1 Shri Harvinder Singh Obroi is categorical that he had seen the driving licence of the driver and appeared to be genuine. Further, he had also taken the driving test of the driver and was satisfied with the driving skills. The testimony could not be dented during cross-examination and there is no ground to disbelieve the same. I am of the considered view that merely proving that the licence was fake does not lead to an inference that there was a willful breach on the part of the insured with respect to the conditions of the policy due to possession of a fake licence by the driver of the offending vehicle or the same was to his knowledge. As held in Lehru's case (supra), the owner of the vehicle does not have to make full fledged inquiry with respect to the validity of the driving licence except at the commencement of the employment unless and until it is specifically brought to the notice of the employer that the driver is driving with a fake driving licence or an expired driving licence. The case is squarely covered by the judgment in New India Assurance Co.Ltd. v. Nafis Ahmed Abdul Razaq Ansari and others, 2015 ACJ 1955 (Division Bench judgment Page No.297 of 313 of Hon'ble High Court of Gujarat) and the judgments of the Hon'ble Apex Court as discussed in preceding paragraphs as relied by counsel for Respondent No.2.
In the facts and circumstances on record, the insurance company has failed to prove willful and conscious breach on part of insured qua the possession of fake licence by Respondent No.1 at the relevant time.
211. Now the contentions raised by counsel for insurance company for being exonerated from the liability to pay the compensation on the ground that the licence shown by Respondent No.1 never had an endorsement to drive vehicle in hilly area but was still deputed by Respondent No.2/insured may be dealt with. In the aforesaid context, the judgments relied by Respondent No.2/insured as well as insurance company may be briefly highlighted.
United India Insurance Company Ltd. v. Prem Bisht & Anr. 2008 ACJ 1057 (Uttarakhand High Court) relied by counsel for Respondent No.2 dealt with a case of compensation on account of death of one Govind Singh in a motor vehicular accident on 02.03.2002 while travelling by Jeep No. UP 01 3159. The vehicle was alleged to be driven by the driver rashly and negligently and fell into a ditch resulting in fatal injuries to Govind Singh. The insurance company admitted the insurance of the vehicle but took a stand that the vehicle was being plied against the terms and conditions of the insurance policy as the driver did not possess a valid driving licence as there was no endorsement in the driving licence regarding Page No.298 of 313 authority to drive the vehicle in hilly areas. Further, reliance was placed upon Rule 193 of Motor Vehicles Rules, 1998 which provided that no person shall drive a public service vehicle or goods vehicle on a hill road unless his licence to drive such vehicle has been endorsed by a registering authority with a permission to drive upon hill roads situated within the jurisdiction of such registering authority or in case of a public service vehicle hired by tourists, by the registering authority of the State with which reciprocal arrangements on the point have been agreed upon. The contention on behalf of the insurance company was repudiated on behalf of claimants that endorsement is applicable for public service vehicles and further there being no such provision under Motor Vehicles Act, Rule 193 cannot be held to be applicable.
Hon'ble High Court placing reliance upon United India Insurance Company Ltd. v. Lehru, National Insurance Company Ltd. v. Swaran Singh and Lal Chand v. Oriental Insurance Company Ltd. held that there shall be no breach of Section 149(2)(a)(ii) on account of non-endorsement of hill driving licence and the insurance company cannot be absolved of the liability in view of defence of the owner of the vehicle in his written statement that driver of the vehicle was an expert driver having a valid driving licence.
212. In Rajender Singh Negi v. Oriental Insurance Company Ltd., IV (2008) CPJ 250 (NC) decided by National Consumer Disputes Redressal Commission, New Delhi as relied on behalf of insurance company, the case involved a light Page No.299 of 313 motor transport vehicle owned by the claimant in an accident in Uttarakhand while transporting some goods from Rishikesh to Joshimath. The vehicle was badly damaged and the insurance company repudiated the complainant's claim on the ground that the licence held by driver of the vehicle did not authorise him to drive a vehicle on hill roads and as such there was violation of the terms and conditions of the insurance policy in view of provisions of Motor Vehicles Act, 1988 read with Uttar Pradesh Motor Vehicles Rules, 1998. It was held by the Hon'be National Consumer Disputes Redressal Commission that any driving licence not in conformity with the provisions of Motor Vehicles Act and relevant Motor Vehicles Rules would render the driving licence ab initio invalid. If a specific rule of the applicable Motor Vehicles Rules requires a special endorsement on the driving licence to authorise the holder of the licence to drive on hill roads, use of driving licence, non compliance with this requirement would render the driving licence invalid for the purpose, namely, driving on hill roads. It was further observed that "hill road endorsement" on a driving licence is not a mere formality which can be rest aside as unnecessary in a State which is generally hilly as it is obvious that safe driving on hill roads needs a higher level of skills on the part of the driver.
In other case relied on behalf of the insurance company i.e. United India Assurance Company Ltd. v. M/s Hillways Engineering Co. decided by State Consumer Disputes Redressal Commission, Uttarakhand on 23.05.2013, the truck owned by M/s Hillways Engineering Co. met with an accident on 02.11.2004 and got badly damaged. The claim filed on Page No.300 of 313 behalf of complainant was repudiated by insurance company on the ground that driver of the truck was not holding a valid licene at the time of accident. Referring to Rule 193 of Uttar Pradesh Motor Vehicles Rules, 1998 it was held that the said provision clearly shows that the requirement for 'hill road endorsement' on the driving licence of the driver who drives the vehicle on hill roads is mandatory and not just a formality. Further, without such an endorsement, the driving licence cannot be said to be valid or effective for driving public service vehicle or goods vehicle on the hill roads. As such, if the driving licence was not endorsed for hill roads, it would amount to breach of insurance policy conditions and also violation of the Motor Vehicles Act. The repudiation of "own damage insurance claim" by the insurance company was held to be justified.
213. In the instant case, reference may also be made to Rule 185 of the Himachal Pradesh Motor Vehicles Rules as relied by counsel for insurance company which provides as under:
"185. Special Provisions on hill roads :-
On all hill roads all drivers shall observe the following special rule namely:-
(a) no motor vehicle shall overtake another, except at a place where the whole road is clearly visible for at least 180 metres ahead;
(b) when two motor vehicles approach each other in opposite directions at a point where they cannot meet without danger of collusion, the vehicle proceeding down hill shall give way to the vehicle proceeding uphill and when such a meeting takes place in a dip or on a level stretch of road, the vehicle on the inside of the road, that, the side from which the hill side slopes upwards, shall give way;
(c) the driver while taking turn on every bend and curve Page No.301 of 313 shall give horn; provided that it shall not be necessary to give a horn at bend or curve near a hospital if an indication for not giving a horn has been put at that bend or curve;
(d) the driver shall not drive a public service vehicle on any hill road, unless his license has been enclosed "for driving on hill roads" by the Registering authority;
Explanation :- For the process of this rule, the expression "Hill Road" shall mean all roads in the State except these roads which may be declared by the Government by a notification in the official Gazette as plain roads."
214. Apparently, the purpose of endorsement on licence in relation to public service vehicles driven in hilly areas is to ensure safe driving on the hill roads as it requires a higher level of skills on the part of the driver. However, it may be noticed that in United India Assurance Company Ltd. v. M/s Hillways Engineering Co. & Ors. (supra) decided by State Consumer Disputes Redressal Commission relied by counsel for insurance company, reliance was placed upon by petitioners therein on judgment passed by Hon'ble High Court of Uttarakhand in case of Balbir Singh vs. Shobha Kashyap & Another, 2009 ACJ 546 to press that the non-endorsement of hill driving licence does not absolve the insurance company from the liability to pay the compensation but the same was distinguished on the ground that it referred to order passed by the Workmen Compensation Commissioner and pertained to 'third party claim' while the case before the Hon'ble Commission pertained to 'own damage of vehicle'. Further, reliance was placed by Hon'ble Commission upon IV (2008) CPJ 250 (NC) Rajender Singh Negi v. Oriental Insurance Co. Ltd. which case also related to the case of 'own damage' to the vehicle and insurance company was absolved of Page No.302 of 313 the liability. It is pertinent to note that United India Assurance Co. Ltd. v. Prem Bisht & Anr as well as Balbir Singh vs. Shobha Kashyap & Another (supra), decided by Hon'ble High Court of Uttarakhand specifically lay down that there would be no breach of Section 149(2)(a)(ii) on account of non- endorsement of hill driving licence and the insurance company cannot be absolved of the liability relying upon the judgment passed by the Division Bench of Hon'ble High Court of Uttarakhand in New India Assurance Co. Ltd. v. Kala Devi, AO No.139 of 2005 decided on 31.10.2006 and the findings may be beneficially quoted:
"9. Mr. D.S. Patni has further submitted that the driver of the vehicle has no valid driving licence, as there is no endorsement in the driving licence regarding authority to drive the vehicle in hill areas. Mr. D.S. Patni has referred Rule 193 of Motor Vehicles Rules, 1998, which reads as under:
193. Endorsement of certain licences for hill roads.--No person shall drive a public service vehicle or a goods vehicle on a hill road unless his licence to drive such public service vehicle or goods vehicle has been endorsed by a registering authority with a permission to drive upon hill roads situated within the jurisdiction of such registering authority or in the case of a public service vehicle hired by tourists, by the registering authority of the State with which reciprocal arrangements on the point have been agreed upon.
10. On the other hand, the counsel fro the respondents Mr. Kishor Jkumar, Mr. L.K. Tiwari and Mr. P.C. Bisht have submitted that aforesaid endorsement is only applicable for public service vehicles and further there being no such provision under the Motor Vehicles Act, therefore, Rule 193 cannot be held to be applicable.
I have considered the submissions in the light of the above rules and I find that if there was no endorsement of authorisation to drive the vehicles in hills, the licence cannot be held invalid.
11. The Supreme Court in the case of United India Insurance Co. Ltd. v. Lehru, has held that where the driver's licence is found fake, liability of insurance company towards third party does not get avoided. The Apex Court has observed as under:
(17) When an owner is hiring a driver he will therefore have Page No.303 of 313 to check whether the driver has a driving licence. IF the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with R.T.Os., which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of its liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner-insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia's case 1987 ACJ 411 (SC); Sohan Lal Passi's case and Kamla's case. We are in full agreement with the views expressed therein and see no reason to take a different view.
12. In the case of National Insurance Co. Ltd. v. Swaran Singh, the Apex Court has held as under:
(102)(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
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(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during therelevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the Page No.304 of 313 concept of 'fundamental breach' to allow defences available to the insurer under Section 149(2) of the Act.
13. The Apex Court in the case of Lal Chand v. Oriental Insurance Co. Ltd., after placing reliance upon the case-law enumerated in the case of New India Assurance Co. Ltd. v. Kamla; United India Insurance Co. Ltd. v. Lehru and National Insurance Co. Ltd. v. Swaran Singh, has held as under:
(9) In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner had satisfied himself that the driver had a licence and was driving competently, there would be no breach of Section 149(2)(a)(ii) and the insurance company would not then be absolved of its liability.
14. Owner of the vehicle has mentioned in his written statement that the driver of the vehicle was an expert driver having valid driving licence. He filed the copy of licence along with his written statement. Hence, in view of the observations made above, there would be no breach of Section 149(2)(a)(ii) on account of the non-endorsement of hill driving licence and the insurance company cannot be absolved from his liability.
15. Similar view has been taken by the Division Bench of this Court in New India Assurance Co. Ltd. v. Kala Devi A.O. No.139 of 2005; decided on 31.10.2006."
The same is also the ratio laid down in United India Insurance Company Ltd. vs. Prem Bisht & Anr., 2008 ACJ 1057 (Uttaranchal High Court).
Similarly, in Oriental Insurance Company Ltd. vs. Smt. Devki Devi and Others decided by Hon'ble Uttaranchal High Court on 09 May, 2016 wherein the driving licence did not have the endorsement to drive the vehicle on hilly roads, it was observed:
"If the driving licence does not fulfill the requisite necessities, as envisaged under the Act, then in such eventuality, the driver of such vehicle may be challaned under the appropriate provisions of the Act or his licence may be cancelled. But, at the same time, only for a small shortcoming on the part of the driver as regards his lience, Page No.305 of 313 the claimants/dependents cannot be made to suffer from compensation as adumbrated under the Act. All the more, such breaches are minor in nature."
In the present case also the evidence of the insured is that he had taken the test of the driver at the time of employment and was satisfied with the driving skills and further the driver of the vehicle prior to the accident on 20.06.2007 had been extensively driving the vehicle in the hilly area since commencement of pilgrimage on 17.06.2007. In the facts and circumstances, in view of judgment passed in Balbir Singh vs. Shobha Kashyap & Anr. (supra), the insurance company cannot be absolved of the liability on the ground of non-endorsement of hill driving licence.
215. It is next contended by counsel for insurance company that there has been breach of permit/conditions of insurance policy since the offending vehicle was carrying passengers in excess of the carrying capacity of 29 passengers apart from driver and conductor. Reliance is further placed by the counsel for insurance company on National Insurance Company Ltd. vs. Anjana Shyam & Ors. IV (2007) ACC 355 (SC).
216. It may be noticed that Sub-clause (ii) of Clause (b) of Section 147(1) of the Act obliges the owner to take out insurance compulsorily against the death of or bodily injury to any passengers of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
Page No.306 of 313Further Section 58 sub-section (2) provides that a registering authority when registering a transport vehicle shall enter in the record of registration and in the certificate of registration various particulars and Clause (d) provides that if the vehicle is used or adapted to be used for carriage of passengers, the number of passengers for whom accommodation is provided. Thus the registration of the vehicle, which alone makes it usable on the road, records the number of passengers to be carried and the certificate of registration also contains that entry. So, an insurance company insuring the passengers carried in a vehicle in terms of Section 147 (1) (b) (ii) of the Act, can only insure such number of passengers as are shown in the certificate of registration.
Also Clause (vii) Sub-section (2) of Section 72 of the Motor Vehicles Act with respect to grant of stage carriage permits deals with conditions regarding the maximum number of passengers that may be carried in a stage carriage. The permit is also liable to be cancelled in case of violation of any of the conditions U/s 86. In view of above the insurance can be taken only in respect of the persons permitted to be carried under the permit which in turn also corresponds to the number of passengers for which the vehicle is built to carry. Further, the insurance company is liable only in respect of the number of passengers for whom insurance can be taken under the Motor Vehicles Act and for whom insurance can be taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
Page No.307 of 313217. In National Insurance Company Ltd. vs. Anjana Shyam & Ors. IV (2007) ACC 355 (SC) offending bus was insured for 42 passengers while at the time of accident the bus carried 90 passengers. The accident involved death of 26 passengers including driver and injuries were sustained by 63 passengers. It was held by the Hon'ble Apex Court that the insurance company cannot be taken to cover more passengers than permitted by certificate of registration and permit as a stage carrier. Further the insurance company can be made liable only in respect of number of passengers from whom insurance can be taken under the act and for whom insurance can be taken as a fact and not in respect of other passengers involved in the accident in case of overloading. It was further held that insurance company can be made liable only in respect of number of passengers for whom insurance was taken and accordingly 42 awards were to be satisfied by insurer in descending order starting from highest award.
It was therein further held as to how to determine the compensation payable or how to quantify the compensation since there is no mean of ascertaining who out of the overloaded passenger constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. It was therein held that the insurance company, in such a case, would be bound to cover the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy i.e. in the aforesaid the 42 highest awards out of 90 were directed to be paid by the insurance company since the insurance could have been taken only in respect of 42 Page No.308 of 313 passengers as per carrying capacity of the vehicle. The Tribunal was further directed to distribute the money so deposited by the insurance company proportionately to all the 90 claimants and leave all the claimants to recover the balance from the owner of the vehicle.
218. In the present case, as per testimony of R2W1 the permit was obtained which was valid for the relevant period and further the number of passengers carried in the bus was as per the list (R2W1/DX1). It was further submitted that as per the list of passengers, there were no excess passengers being carried in the bus which had the sitting capacity of 30 as per Ex.R2W1/DX though the same has been disputed on behalf of insurance company and it is claimed that the bus carried about 37 passengers.
Admittedly, in the present case the numbers of claim petitions which have been filed before this Tribunal is 29 and it has not been pointed out by the counsel for insurance company if any other claim petition stands filed in any other court/tribunal. Though it is claimed on behalf of insurance company that the number of passengers travelling at the time of accident was more than 30 on the basis of evidence of R3W2 Sh.C.N.Sharma, Administrative Officer of the Insurance Company but the same has not been conclusively proved on record. It needs to be noticed that the excess passengers, if any, presumed to be travelling in the bus have not been proved to be the contributory cause for the accident.
Reference may be made to Lakhmi Chand v.
Page No.309 of 313Reliance General Insurance, Civil Appeal Nos. 49-50 of 2016 (Arising out of SLP (C) 37534-37535 of 2013) relied by counsel for Respondent No.2. In the aforesaid case, the claim of appellant towards repair of the vehicle which was involved in an accident was dismissed by the State Commission as the insurance company took the ground that five passengers were travelling in the goods carrying vehicle at the time of accident whereas the permitted capacity of the motor vehicle was only 1+1. Further, the same was upheld by the National Commission. However, the findings of the National Commission were reversed by the Hon'ble Apex Court relying upon B.B. Nagaraju v. Oriental Insurance Co. Ltd. Divisional Officer, Hassan and it was observed that mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability. It was also observed that the misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident. Reference was also made to National Insurance Company Ltd. v. Swaran Singh & Ors., wherein it was held that "49. such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach."
In the facts and circumstances, the insurance Page No.310 of 313 company is liable for payment of compensation to all the 29 claimants, who have filed the claim petition before this Tribunal and cannot be absolved of its liability to pay the compensation.
219. It is further held that Respondent No.1 (Driver), Respondent No.2 (Owner) and Respondent No.3 (Insurer) of the offending vehicle are jointly and severally liable to make the payment of compensation to the petitioners/claimants.
220. The jurisdiction in the present proceedings has been invoked u/s 166 of MV Act since some of the petitioners are residents within jurisdiction of this Tribunal though the accident had taken place in H.P. Since in the present case the driving licence of the driver of the offending vehicle has been found to be fake and resulted in several casualties and injuries to other passengers, a copy of judgment be forwarded to SHO, PS: Tilak Nagar, Delhi within whose jurisdiction respondent no.1 & 2 are residing, for initiating criminal proceedings against the driver Raj Singh @ Nasir Ali for possession of fake licence, if the case has not been earlier registered and the action taken report be accordingly placed before the Tribunal within a month.
221. It may be observed that the number of casualties and injured in the present case calls for simplification of process of verification of licences issued by different licencing authorities outside Delhi. For the aforesaid Page No.311 of 313 purpose, the licences issued by different licencing authorities outside Delhi need to be connected to a centralised server wherein the verification report can be obtained online to check the scam of fake licences. The same would go a long way in curbing the number of such accidents and save some precious lives.
A copy of this order be sent to Chief Secretary, Govt. of NCT of Delhi and Commissioner of Police, Delhi for taking necessary steps with the concerned Ministry in this regard and action taken report be filed within four weeks.
218. Relief Since the offending vehicle was duly insured, Respondent No.3/The New India Assurance Company Ltd. is directed to deposit the award amount as calculated in respective cases above along with interest @ 9% per annum from the date of filing of claim petitions till realization with Nazir of this Court within 30 days under intimation to the petitioner/s, failing which the Insurance Company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
Insurance Company/driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount with the Tribunal to the claimant/s and complete details in respect of calculations of interest etc. in the court within 30 days from today.
A copy of this judgment be sent to Respondent No.3/ Page No.312 of 313 The New India Assurance Company Ltd. for compliance within the time granted.
Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the time granted.
The order be placed in lead case bearing Suit No.307/11 titled as Sapna Talwar & Ors. Raj Singh @ Nasir Ali as all the cases have been disposed together and need not be separately placed in each case considering the voluminous award.
File be consigned to Record Room.
Announced in open court (Anoop Kumar Mendiratta) on 16th July, 2016 Judge MACT-1 (Central), Tis Hazari Courts, Delhi.
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