Delhi District Court
Mool Chand vs Sandeep Singh on 14 August, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D71/14
Date of Institution: 02.07.2013
IN THE MATTER OF:
Mool Chand
S/o Late Shri Nathu Ram
R/o H.No.RZ650/313, Geetanjali Park
Sagarpur West
New Delhi. ...Petitioner
Versus
1. Sandeep Singh
S/o Shri Mahaveer Singh
R/o Arya Nagar, Gali No.4
Bahadur Garh, Haryana.
2. Delhi Transport Corporation
Central Workshop I
BB Marg
Delhi - 110009.
3. United India Insurance Company Ltd.
E85, Himalaya House
K.G. Marg
Connaught Place
New Delhi. ...Respondents
Suit No. D71/14 Page no. 1 of 29 Mool Chand Vs. Sandeep Final Arguments heard : 29.05.2015 Award reserved for : 21.07.2015 Date of Award : 14.08.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as a petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 04.05.2013 near Kapoor Hospital, Naraina, New Delhi at about 9.00 p.m. he fell down from DTC Bus No.DL1PC8176 while boarding the bus as the driver suddenly drove the bus negligently without caring for the passengers who were still boarding the bus and without closing the door of the bus and he became critically injured. It is averred that from the accident site he was taken to Dr. RML Hospital where his MLC was prepared. It is stated that in respect of the accident FIR No.111/2013 under sections 279/337 of IPC was registered at PS Naraina. It is submitted that the petitioner was admitted in the Hospital by the doctors and he was diagnosed by the doctors of Dr. RML Hospital with "Compound GradeIIIB (Disk 1 Y3), fracture of both bone (L) Leg, c undisplaced (L) calcaneum c fracture (L) Medial Malbotus". It is stated that the injured remained admitted in hospital from 04.05.2013 to 31.05.2013 and was operated twice for correction of the injuries on 05.05.2013 and 26.05.2013. After discharge from hospital he Suit No. D71/14 Page no. 2 of 29 Mool Chand Vs. Sandeep took treatment as an outdoor patient from Dr. RML Hospital and again he was admitted in Dr. RML Hospital on 20.06.2013 and operated for correction of his injuries on 21.07.2013 and discharged from the hospital on 02.08.2013. He remained under treatment of RML Hospital, DDU Hospital and Shakuntla Nursing Home & Hospital, Sagarpur, New Delhi as outdoor patient till the end of 2014. It is contended that in the accident the petitioner received permanent disability. It is submitted that at the time of the accident the petitioner was about 38 years and was running a Dhaba in Naraina Inds. Area, Ph.II, along with his father under Tehbazari License and was earning Rs.18,000/ per month and due to the accident he could not do his work for 1 1/2 years. It is averred that the injured had spent about Rs.2,00,000/ on medical treatment and Rs.90,000/ on special diet, Rs.30,000/ on conveyance and Rs.90,000/ on attendant. It is contended that due to the accident the injured suffered physically, mentally and financially and he had to suffer lifelong physically and mentally due to the permanent disability received to him due to the accident which occurred due to the sole negligent act of the driver of the offending vehicle.
3. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that no accident with the bus as alleged had taken place. It is stated that the bus No.DL1PC8176 was involved in the accident as alleged. It is submitted that the vehicle No.DL1PC8176 was insured with M/s United India Insurance Co. Ltd. vide policy No. Suit No. D71/14 Page no. 3 of 29 Mool Chand Vs. Sandeep 0411003112P303179873 valid for the period 12.03.2013 to 11.03.2014. It is contended that the accident did not occur due to the rash and negligent driving of the respondent No.1/driver. It is submitted that on 04.05.2013 the respondent No.1 was on duty on bus No.DL1PC8176 and had taken the trip from Jama Masjid to Uttam Nagar. The respondent No.1 had picked up passengers from Payal Cinema bus stop and had closed the doors of the bus, then suddenly the injured/claimant tried to board the bus by trying to hold the closed door and in that process fell down and sustained injuries due to his own fault because of which he sustained injuries. When the respondent No.1 came out of the bus it was noticed by him that the claimant was heavily drunk and he sent the injured to RML Hospital. It is alleged that the accident had taken place solely due to the fault of the injured/ claimant and the respondent No.1 had been falsely implicated in the case.
4. Legal offer was filed on behalf of the insurance company stating that it was a simple injury case and as per the MLC, the petitioner was detected under the influence of Alcohol, which supported the fact that while boarding the bus negligence on his part could not be ruled out. An offer of Rs.10,000/ in addition to the actual medical bills was made.
5. Vide order dated 07.02.2014 from the pleadings of the parties, the following issues were framed:
Suit No. D71/14 Page no. 4 of 29 Mool Chand Vs. Sandeep
1. Whether the petitioner sustained injuries in the accident which occurred on 04.05.2013 at about 21 hrs. at Naraina Vihar Bus Stand near Kapoor Hospital caused by rash and negligent driving of vehicle No.DL1PC8176 driven by respondent no.1 Sandeep and owned by respondent no.2 DTC and insured with respondent no.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom? OPP
3. Relief.
The matter was listed before Lok Adalat but the same could not be settled. An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 9.5.2014. A report was received from the Disability Board that the permanent disability could not be assessed as the petitioner was still undergoing treatment, accordingly the matter was adjourned sine die vide order dated 18.7.2014. Another application was filed for issuance of disability certificate which was allowed vide order dated 13.2.2015 and the matter was also restored vide order of said date. Another application was filed for issuance of disability certificate which was allowed vide order dated 1.5.2015. Vide order of said date it was also directed that no interest shall be payable to the petitioner on the award, if any, from 13.2.2015 till the date the disability certificate was received.
Suit No. D71/14 Page no. 5 of 29 Mool Chand Vs. Sandeep
6. The petitioner Shri Mool Chand appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A. Copy of ID proof is Ex.PW1/1 and the original medical bills, copy of discharge summaries, OPD Cards and reports are Ex.PW1/2 (colly). PE was closed on 1.5.2015. It was stated by the learned counsel for the insurance company that no RE was to be led. RE was closed on 15.5.2015.
7. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioner was also examined on 1.5.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
8. My findings on the specific issues are as under:
Issue No. 1
9. As the case is U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
Suit No. D71/14 Page no. 6 of 29 Mool Chand Vs. Sandeep
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or Suit No. D71/14 Page no. 7 of 29 Mool Chand Vs. Sandeep involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
10. The case of the petitioner is that on 04.05.2013 near Kapoor Hospital, Naraina, New Delhi at about 9.00 p.m. he fell down from DTC Bus No.DL1PC8176 while boarding the bus as the driver suddenly drove the bus negligently without caring for the passengers who were still boarding the bus and without closing the door of the bus and he became critically injured. It was averred that from the accident site he was taken to Dr. RML Hospital where his MLC was prepared. It was stated that in respect of the accident FIR No. 111/2013 under sections 279/337 of IPC was registered at PS Naraina. PW1 had also deposed to that effect.
11. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of tehrir, copy of FIR; copy of DD, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of duty slip of the respondent No.1, copy of certificate of fitness and its verification report, extract of permit of the offending vehicle, copy of order on application for release of Suit No. D71/14 Page no. 8 of 29 Mool Chand Vs. Sandeep the offending vehicle on superdari along with a copy of the superdarinama and copy of MLC. As per the FIR No.111/13 under sections 279/337 IPC, PS Naraina the case was registered on the basis of complaint of the petitioner Mool Chand wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/338 IPC.
12. The respondents No.1 and 2 had filed the written statement averring that no accident with the bus as alleged had taken place. It was stated that the bus No.DL1PC8176 was involved in the accident as alleged. It was contended that the accident did not occur due to the rash and negligent driving of the respondent No.1/driver. It was submitted that on 04.05.2013 the respondent No.1 was on duty on bus No.DL1PC8176 and had taken the trip from Jama Masjid to Uttam Nagar. The respondent No.1 had picked up passengers from Payal Cinema bus stop and had closed the doors of the bus, then suddenly the injured/claimant tried to board the bus by trying to hold the closed door and in that process fell down and sustained injuries due to his own fault because of which he sustained injuries. When the respondent No.1 came out of the bus it was noticed by him that the claimant was heavily drunk and he sent the injured to RML Hospital. It was alleged that the accident had taken place solely due to the fault of the injured/ claimant and the respondent No.1 had been falsely implicated in the case.
Suit No. D71/14 Page no. 9 of 29 Mool Chand Vs. Sandeep
13. During crossexamination by the learned counsel for the insurance company PW1 stated that the accident took place on 4.5.2013. The accident took place while he was boarding the bus from the rear door. He denied the suggestion that the bus was moving while he boarded the bus. He denied the suggestion that the accident took place due to his fault. Thus PW1 reiterated that the accident took place while he was boarding the bus from the rear door though he denied the suggestion that the bus was moving while he boarded the bus. The respondents No.1 and 2 had tried to contend that after the doors of the bus were closed, then suddenly the injured/claimant tried to board the bus by trying to hold the closed door and in that process fell down and sustained injuries and he was heavily drunk. It is true that as per the MLC of the petitioner the smell of alcohol was positive but there is nothing to show that any blood sample was taken to know the quantity of alcohol in the blood of the petitioner. Further there is nothing to support the contention of the respondents No.1 and 2 that the doors of the bus were closed when the petitioner tried to board the bus by trying to hold the closed door. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the FIR is against the respondent No.1 for the offence under Sections 279/337 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record Suit No. D71/14 Page no. 10 of 29 Mool Chand Vs. Sandeep a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to disprove the particulars of the accident or the involvement of vehicle No.DL1PC8176. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
14. It was stated that due to fall from the bus the petitioner became critically injured and from the accident site he was taken to Dr. RML Hospital where his MLC was prepared. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents. Issue No.2
15. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, Suit No. D71/14 Page no. 11 of 29 Mool Chand Vs. Sandeep suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
16. The case of the petitioner is that due to fall from the bus on 4.5.2013 the petitioner became critically injured and from the accident site he was taken to Dr. RML Hospital where his MLC was prepared. It was submitted that the petitioner was admitted in the Hospital by the doctors and he was diagnosed by the doctors of Dr. RML Hospital with "Compound GradeIIIB (Disk 1 Y3), fracture of both bone (L) Leg, c undisplaced (L) calcaneum c fracture (L) Medial Malbotus". It was stated that the injured remained admitted in hospital from 04.05.2013 to 31.05.2013 and was operated twice for correction of the injuries on 05.05.2013 and 26.05.2013. After discharge from hospital he took treatment as an outdoor patient from Dr. RML Hospital and again he was admitted in Dr. RML Hospital on 20.06.2013 and operated for correction of his injuries on 21.07.2013 and discharged from the hospital on 02.08.2013. He remained under treatment of RML Hospital, DDU Hospital and Shakuntla Nursing Home & Hospital, Sagarpur, New Delhi as outdoor patient till the end of 2014. It was contended that in the accident the petitioner received permanent disability. It was averred that the injured had spent about Rs. 2,00,000/ on medical treatment. It was contended that due to the accident the injured suffered physically, mentally and financially and he had to suffer Suit No. D71/14 Page no. 12 of 29 Mool Chand Vs. Sandeep lifelong physically and mentally due to the permanent disability received to him due to the accident. The petitioner had also deposed to that effect. The original medical bills, copy of discharge summaries, OPD Cards and reports are Ex.PW1/2 (colly).
17. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was not opined in the MLC. However the MLC shows fracture of tibia. The documents placed on record also show that the petitioner had sustained the injuries as stated by him and he remained admitted in hospital from 4.5.2013 to 31.5.2013 and from 20.7.2013 to 2.8.2013. Thus the injuries were grievous in nature. Further the petitioner had sustained disability and the disability certificate is on record as per which the total permanent physical impairment in respect of the petitioner was 52%. During crossexamination by the learned counsel for the insurance company PW1 admitted that he did not have medical bills for Rs.2,00,000/ but the bills which he had, he had already placed on the Court file. Thus PW1 admitted that he did not have medical bills for Rs.2,00,000/ but the bills which he had, he had already placed on the Court file. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent about Rs.2,00,000/ on medical treatment. The petitioner had filed bills for an amount of Rs.19,664/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would incur some expenses Suit No. D71/14 Page no. 13 of 29 Mool Chand Vs. Sandeep even subsequently. Accordingly an amount of Rs.22,000/ is awarded towards medical treatment and expenses including the amount of the bills. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
18. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to fall from the bus on 4.5.2013 the petitioner became critically injured and from the accident site he was taken to Dr. RML Hospital where his MLC was prepared. It was submitted that the petitioner was admitted in the Hospital by the doctors and he was diagnosed by the doctors of Dr. RML Hospital with "Compound GradeIIIB (Disk 1 Y3), fracture of both bone (L) Leg, c undisplaced (L) calcaneum c fracture (L) Medial Malbotus". It was stated that the injured remained admitted in hospital Suit No. D71/14 Page no. 14 of 29 Mool Chand Vs. Sandeep from 04.05.2013 to 31.05.2013 and was operated twice for correction of the injuries on 05.05.2013 and 26.05.2013. After discharge from hospital he took treatment as an outdoor patient from Dr. RML Hospital and again he was admitted in Dr. RML Hospital on 20.06.2013 and operated for correction of his injuries on 21.07.2013 and discharged from the hospital on 02.08.2013. He remained under treatment of RML Hospital, DDU Hospital and Shakuntla Nursing Home & Hospital, Sagarpur, New Delhi as outdoor patient till the end of 2014. It was contended that in the accident the petitioner received permanent disability. It was contended that due to the accident the injured suffered physically, mentally and financially and he had to suffer lifelong physically and mentally due to the permanent disability received to him due to the accident. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was not opined in the MLC. However the MLC shows fracture of tibia. The documents placed on record also show that the petitioner had sustained the injuries as stated by him and he remained admitted in hospital from 4.5.2013 to 31.5.2013 and from 20.7.2013 to 2.8.2013. Thus the injuries were grievous in nature. Further the petitioner had sustained disability and the disability certificate is on record as per which the total permanent physical impairment in respect of the petitioner was 52%. Thus the petitioner had sustained permanent physical impairment due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2013, the petitioner is awarded Rs. 70,000/ (Rs.Seventy Thousand only) for pain and suffering.
Suit No. D71/14 Page no. 15 of 29 Mool Chand Vs. Sandeep
19. The petitioner was about 38 years of age and PW1 had deposed to that effect. Copy of the voter identity card of the petitioner is on record as Ex.PW1/1 as per which the age of the petitioner as on 1.1.1994 was 32 years. Thus the petitioner would have been more than 51 years old on the date of the accident i.e. 4.5.2013. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.30,000/ (Rs.Thirty Thousand only) for loss of amenities of life. The petitioner cannot be held entitled to any amount towards loss of expectation of life. However he is awarded an amount of Rs.25,000/ towards permanent disability. CONVEYANCE AND SPECIAL DIET
20. The petitioner in para 7 of his affidavit Ex.PW1/A had stated that he had spent Rs.30,000/ on conveyance. During crossexamination by the learned counsel for the insurance company PW1 admitted that he did not have any bills for Rs.90,000 spent on special diet, Rs.30,000/ on conveyance and Rs. 90,000/ on attendant charges. The petitioner had given details of spending about Rs.1,650/ on auto. However there is nothing to establish the same. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that Suit No. D71/14 Page no. 16 of 29 Mool Chand Vs. Sandeep after the accident the petitioner was taken to RML Hospital and he was also treated at DDU Hospital and Shakuntala Nursing Home and Hospital and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.10,000/ (Rs.Ten Thousand only) would be just and proper towards conveyance charges.
21. The petitioner in para 7 of his affidavit Ex.PW1/A had stated that he had spent Rs.90,000/ on special diet. During crossexamination by the learned counsel for the insurance company PW1 admitted that he did not have any bills for Rs.90,000 spent on special diet, Rs.30,000/ on conveyance and Rs. 90,000/ on attendant charges. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
22. The petitioner in para 7 of his affidavit Ex.PW1/A had stated that he had spent Rs.90,000/ on attendant. During crossexamination by the learned counsel for the insurance company PW1 admitted that he did not have any bills for Rs.90,000 spent on special diet, Rs.30,000/ on conveyance and Rs. 90,000/ on attendant charges. Although the petitioner has not produced any Suit No. D71/14 Page no. 17 of 29 Mool Chand Vs. Sandeep evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.15,000/ is awarded towards attendant charges.
LOSS OF INCOME
23. It is the case of the petitioner that at the time of the accident he was about 38 years and was running a Dhaba in Naraina Inds. Area, Ph.II, along with his father under Tehbazari License and was earning Rs.18,000/ per month and due to the accident he could not do his work for 1 1/2 years. It was contended that due to the accident the injured suffered physically, mentally and financially and he had to suffer lifelong physically and mentally due to the permanent disability received to him due to the accident. The petitioner had also deposed to that effect. However the petitioner has not placed on record any document to show what he was doing or how much amount he was earning. During crossexamination by the learned counsel for the insurance company PW1 stated that he was illiterate. He stated that he had his tea stall/shop at the footpath in Naraina Industrial Area. He was having license from MCD but he had not brought the same. He stated that he was an income tax payee. He had not filed any ITR. Again said he did not pay any income tax. He stated that he did not keep any record of his earning from the tea shop. He denied the suggestion that his claim was exaggerated. Thus PW1 stated that Suit No. D71/14 Page no. 18 of 29 Mool Chand Vs. Sandeep he was illiterate. He stated that he had his tea stall/shop at the footpath in Naraina Industrial Area. He stated that he was having license from MCD but he had not brought the same and he also stated that he did not keep any record of his earning from the tea shop. As such there is nothing to establish that the petitioner was indeed running a dhaba or to show the amount that he was earning or to show that he was earning Rs.18,000/ per month. During examination by the Tribunal the petitioner stated that he was 50 years old. He stated that he was running a tea shop and was earning Rs.300/ to Rs.400/ per day. The petitioner had stated that he was illiterate and there is nothing to show that he had acquired any skill. In the absence of any documentary evidence, the income of the petitioner has to be computed on the basis of minimum wages for an unskilled worker prevalent on the date of the accident i.e. 4.5.2013 which were Rs.7,722/ per month. Accordingly the income of the petitioner for computing the loss of earning capacity, if any, is taken as Rs. 7,722/ per month i.e. Rs.92,664/ p.a.
24. The petitioner has not produced any document to show that he was advised bed rest or to show that he remained on bed rest for any period or to show the period for which he could not work due to the injuries sustained in the accident. In the absence of any advice from doctor notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an Suit No. D71/14 Page no. 19 of 29 Mool Chand Vs. Sandeep amount of Rs.35,000/ on account of loss of income for the period for which he was not able to work.
25. It is the case of the petitioner that he had sustained 52% permanent physical impairment. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the Hon'ble Supreme Court has held that :
"4..........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 has 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 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 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. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account Suit No. D71/14 Page no. 20 of 29 Mool Chand Vs. Sandeep of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings.
Suit No. D71/14 Page no. 21 of 29 Mool Chand Vs. Sandeep
26. The petitioner has not examined any doctor to show the effect of the disability on his earning capacity. As per the disability certificate the petitioner had sustained permanent physical impairment of 52%. The petitioner had stated that he was running a dhaba though there is nothing to establish the same. The petitioner would clearly have difficulty in performing his avocation on account of the injuries sustained in the accident though there is nothing to show that he was prevented from doing his work altogether. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 25% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 25% of Rs.92,664/ i.e. Rs.23,166/ p.a.
27. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 11 as the petitioner was more than 51 years old. As regards the future prospects a 3judge bench of the Hon'ble Supreme Court in a recent judgment in Munna Lal Jain and another v. Vipin Kumar Sharma and others Civil Appeal No.4497 of 2015 decided on 15.5.2015 has relied on the judgment in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 where in the Hon'ble Supreme Court held as under (in the case decided on 15.5.2015 the question was of grant of future prospects to self employed victim below 40 years):
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Suit No. D71/14 Page no. 22 of 29 Mool Chand Vs. Sandeep Verma's case (supra) and to make it applicable also to the self employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
As such the petitioner would be entitled to addition of 15% of the income towards future prospects as the petitioner was more than 50 years old. After applying the multiplier of 11, the petitioner shall be entitled to loss of income i.e. Rs.23,166/X 11 = Rs.2,54,826/ + 15% towards future prospects i.e. Rs.2,54,826/ + Rs.38,224/ = Rs.2,93,050/ (rounded off to Rs.2,93,000/). Thus the total amount towards loss of income would be Rs.35,000/ + Rs. 2,93,000/ = Rs.3,28,000/.
Suit No. D71/14 Page no. 23 of 29 Mool Chand Vs. Sandeep The total compensation is assessed as under: Medicines and Medical treatment Rs.22,000/ Pain and suffering Rs.70,000/ Loss of Amenities of life Rs.30,000/ Compensation for disability Rs.25,000/ Conveyance Rs.10,000/ Special Diet Rs.5,000/ Attendant charges Rs.15,000/ Loss of Income Rs.3,28,000/ TOTAL Rs.5,05,000/
Thus the total compensation would be Rs.5,05,000/. RELIEF
28. The petitioner is awarded a sum of Rs.5,05,000/ (Rs.Five Lacs Five Thousand only) including, interim award, if any already passed against the respondents and in favour of the petitioner along with interest @ 9% per annum from the date of filing of the DAR till 13.2.2015 and from 19.5.2015 till its realization (vide order date 1.5.2015 it was directed that no interest shall be payable to the petitioner on the award, if any, from 13.2.2015 till the date the disability certificate was received which was received on 19.5.2015).
29. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Suit No. D71/14 Page no. 24 of 29 Mool Chand Vs. Sandeep Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 20% of the awarded amount be released to the petitioner by transferring it into his savings account and the remaining amount be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Mool Chand within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
Suit No. D71/14 Page no. 25 of 29 Mool Chand Vs. Sandeep
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate his identity.
g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
Suit No. D71/14 Page no. 26 of 29 Mool Chand Vs. Sandeep
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
k) On the request of the petitioner, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner.
l) The petitioner shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
30. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
Suit No. D71/14 Page no. 27 of 29 Mool Chand Vs. Sandeep APPORTIONMENT OF LIABILITY:
31. The respondent No.1 is the driver, the respondent No.2 is the owner of the offending vehicle and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. United India Insurance Co. Ltd. being the insurance company in its reply had not denied the policy. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents No.1 and 2 and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest as directed in para 28 of the judgment cum award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of Suit No. D71/14 Page no. 28 of 29 Mool Chand Vs. Sandeep the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 18.11.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 14th day of August, 2015 (GEETANJLI GOEL)
PO: MACT2
NEW DELHI
Suit No. D71/14 Page no. 29 of 29
Mool Chand Vs. Sandeep