Delhi District Court
Shri Raju vs Shri Mohammad Nisar on 12 December, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.206/14
Date of Institution: 12.11.2013
IN THE MATTER OF:
Shri Raju
S/o Shri Balbhauj
R/o VillageNejra, PO Vasera
PS Vasera
Distt. Madhubani
Bihar. ...Petitioner
Versus
1. Shri Mohammad Nisar
S/o Shri Mohammad Farooq
R/o Village Sahsi
PS & Post Alawli
District Khardiya
Bihar.
2. M/s Loyal Logistics Pvt. Ltd.
17/6, Mathura Road
Faridabad 1210001
Haryana.
3. Tata AIG General Insurance Co. Ltd.
Peninsula Corporate Park
Nicholas Piramal Tower, 9th Floor
Ganpatrao Kadam Marg
Lower Parel
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 1 of 49
Mumbai 400013 ...Respondents
Final Arguments heard : 15.11.2014 Award reserved for : 12.12.2014 Date of Award : 12.12.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the 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 02.07.2013, at about 5.30 hrs. the petitioner aged about 25 years along with another person/ driver namely Shri Vinod was working at/ under their traula No.HR56B3144 and also put the stone/ barricade for stopping the vehicle as the vehicle of the petitioner had some technical fault so the petitioner who was the helper on the vehicle set the stone on the wheel of his truck/ traula at 'Dhaula Kuan towards Mayapuri on Naraina Flyover, New Delhi'. During the said process one other vehicle bearing No.HR38J3270 container/ traula came in high speed from the side of Dhaula Kuan which was being driven by the respondent No.1 in a rash and negligent manner and in contravention of the rules of traffic and came in fast speed without giving any indicator and without blowing any horn and hit the vehicle of the petitioner with great force. It is averred that due to the forceful impact the petitioner fell down on the road and the wheel of the offending vehicle dashed Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 2 of 49 over the leg of the petitioner and the petitioner sustained multiple grievous injuries and the petitioner was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. It is stated that in respect of the accident FIR No.160/2013 under sections 279/338/337 IPC was registered at PS Naraina. It is averred that the accident was caused due to the rash and negligent driving of the respondent No.1 who was driving the offending vehicle at the time of the accident in a rash and negligent act and due to his act an innocent person became the victim for the same. It is averred that due to the accident the petitioner received multiple grievous injuries and other serious injuries, wounds, swelling and pain on different parts of the body and the petitioner had spent a huge amount on his treatment and the family of the petitioner also spent a huge amount on his treatment but despite that he lost his leg for always because he received amputation and his leg was amputated and due to the amputation his whole life had become useless and he became unemployed for always because he was not able to stand independently and he could not do his work properly and he spent all his money on conveyance charges, prescriptions and purchasing the medicines and on special diet and other expenses etc but the petitioner was not well till date. It is averred that Rs. 2 to 3 lacs were spent on the treatment and the treatment was still continuing till date. It is averred that due to the accident the petitioner and his other family members suffered from mental pain and agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 3 of 49
3. It is averred that at the time of the accident the petitioner was doing private job of helper and was earning from the said job Rs.12,000/ p.m. which was a handsome income to run the expenses of his family but due to the accident the income had become nil for always because due to the amputation the petitioner could not do any work, therefore the petitioner became unemployed for always and was facing great financial losses and other irreparable losses. It is averred that at the time of the accident the respondent No.1 was driving the offending vehicle and the respondent No.2 is the owner of the offending vehicle under whose control and supervision the respondent No. 1 was driving the offending vehicle in a rash and negligent manner and the respondent No.3 is the insurance company of the offending vehicle, hence all the respondents are liable to pay the compensation amount to the petitioner jointly or severally. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that no cause of action ever arose in favour of the petitioner and against the respondents No.1 and 2 since no accident as alleged had ever taken place. It is averred that the insurer namely Tata AIG General Insurance Co. Ltd. is liable to make the payment of the alleged claimed amount, if any. It is averred that the alleged accident was not caused by the driver of the vehicle bearing No.HR38J3270 and the said truck had been falsely implicated in the alleged accident with the connivance of the Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 4 of 49 police in order to harass the respondents No.1 and 2 and to extract money from them. It is averred that the alleged accident, if any had ever happened had been caused by the sole negligence of the petitioner/ driver of the truck bearing No.HR 56B 3144 and the petitioner/ driver/ injured was under the influence of alcohol and was driving the truck bearing No.HR 56B 3144 at a very high speed which resulted in the broken shaft. It is averred that the driver and helper of the vehicle bearing No.HR 56B 3144 had not put any visible mark on the truck so as to inform or indicate to the running traffic about the breakdown of the vehicle as alleged. It is averred that the vehicle bearing No.HR 56B 3144 was not having any indicators behind the traula. It is averred that it is the driver and helper of the vehicle bearing No.HR 56B 3144 who had caused the accident and if indicators had been installed or it had been in proper working condition, the accident as alleged would not have happened. It is averred that the respondent No.1 i.e. the driver of the vehicle bearing No.HR 38J 3270 has a valid driving license to drive the vehicle and the respondent No.2 had taken all the precautions before appointment of the said driver/ respondent No.1. It is averred that the respondent No.2 had also seen the driving license held by the driver/ respondent No.1 and the same had also been verified by the IO of the case and had been found to be a genuine one and the respondent No.2 had appointed the respondent No.1 after being satisfied about the driving of the respondent No.1. It is averred that the respondent No.1 was also carrying the valid documents including permit etc of the vehicle and the respondent No.1 was very expert and experienced and he Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 5 of 49 never violated any terms and conditions of the insurance policy. It is averred that the vehicle No.HR 38J 3270 was never involved in the alleged accident as alleged by the petitioner nor the alleged accident was caused by the respondent No.1 and if any accident had ever happened it was because of the sheer negligence of the petitioner/ driver/ helper of the vehicle No.HR 56B 3144 and if the petitioner / driver/ helper were more vigilant the accident could have been avoided. It is averred that the petitioner cannot seek compensation for the negligence and wrong committed by the petitioner/ driver/ helper and if the petitioner had sustained any of the alleged injuries it was due to the act of omission, negligence and commission on the part of the petitioner/ driver/ helper of the vehicle No.HR 56B 3144 and the respondents No.1 and 2 cannot be held liable for the same. It is averred that the driver and helper were carrying much above the payload than the prescribed limit on their truck bearing No.HR 56B 3144 which had caused the breakdown of the vehicle and in turn had resulted in the alleged accident. It is averred that the petition suffers from misjoinder and nonjoinder of the parties and the petitioner has not impleaded the owner and insurance company of the truck bearing No.HR 56B 3144 involved in the alleged accident whereas they are liable to pay for the damages or compensation, if any. It is averred that admittedly the alleged accident had been caused by the negligence of the driver of the truck bearing No.HR 56B 3144 which was wrongly and rashly driven by its driver without holding a valid driving license and as such the respondents No.1 and 2 are not liable for the accident. It is averred that the petitioner had parked his truck Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 6 of 49 bearing No.HR 56B 3144 in the central lane of the road and had not used the parking lights or any other clear visible mark behind the truck so as to inform the running/ upcoming traffic that the alleged truck had broken down while the truck No.HR 38J 3270 was being driven in an extremely careful manner. It is averred that the IO had not seized/ produced the driving license of the driver of the vehicle bearing No.HR 56B 3144 which clearly showed the connivance of the police and the driver of the vehicle bearing No.HR 56B 3144. The averments made were denied. It is stated that the FIR No.160/213 PS Naraina under Sections 279/337/338 IPC was registered falsely by the local police in connivance with the petitioner against the respondent No.1 only to harass and extort money from the respondents No.1 and 2. It is averred that the driver and helper of the truck bearing No.HR 56B 3144 were in a drunk/ inebriated condition and were under the influence of alcohol who had not put any visible mark on their vehicle to inform the upcoming traffic that the said truck had broken down. It is stated that the accident had not been caused due to the negligence of the respondent No.1 nor the truck bearing No.HR 38J 3270 was involved in the accident as alleged.
5. Reply to the DAR was filed on behalf of the insurance company in respect of injured Vinod stating that the offending vehicle was insured with the respondent No.3 vide policy No.010071477300 from 28.9.2012 to 27.9.2013 for vehicle No.HR 38J 3270 in the name of M/s Loyal Logistics Pvt. Ltd. It is averred that the claim is false, frivolous, baseless and vexatious and the Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 7 of 49 injured had not sustained any injuries in the accident. It is averred that the liability of the respondent No.3 is subject to the driver and owner of the offending vehicle holding a valid and effective license at the time of the accident. It is averred that the accident had occurred due to the rashness and negligence of the injured himself. Legal offer was also filed on behalf of the respondent No.3 in respect of Raju for an amount of Rs.73,166/. Subsequently the matter was settled between Vinod and the insurance company.
6. Initially Detailed Accident Report was filed by the IO on 11.10.2013 and thereafter the claim petition was filed on 12.11.2013. From the pleadings of the parties, the following issues were framed vide order dated 15.01.2014 of my learned predecessor:
1. Whether Sh. Raju sustained injuries in the accident which occurred on 2.7.2013 at about 5.30 hrs at Dhaula Kuan towards Mayapuri on Naraina Flyover, New Delhi caused by rash and negligent driving of vehicle No.HR38J3270 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 8 of 49 An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 10.02.2014. The petitioner was again directed to be examined by a Medical Board vide order dated 9.7.2014.
7. The petitioner appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He deposed that on 2.7.2013 he was working with his driver Vinod and they reached at Naraina Flyover, then suddenly the sappat of the traula broke, the driver took the vehicle on the side of the road and his vehicle was stationary, he and his driver had put bricks and fixed the jack under the traula No.HR 56B 3144, then all of a sudden vehicle No.HR 38J 3270 came at a very fast speed from Dhaula Kuan which was driven by the respondent No.1/ driver in a rash and negligent manner without giving any indicator and without blowing any horn and hit the vehicle and PW1 with very great force and due to the sudden impact PW1 fell down on the road and wheel of the offending vehicle dashed over his leg and he sustained multiple grievous injuries, fracture and amputation in his legs and due to the accident he lost one leg and he became a handicapped person for always. He was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. He stated that he spent a huge amount on his treatment and he also spent more amount on his operation so he spent all his deposited money on his treatment and after spending all the money his family members also arranged some money from relatives which was already spent on his Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 9 of 49 treatment and same was not returned till date by him and the treatment was continuing. He stated that he is unmarried and had become a disabled person. He stated that he would take artificial limb for his leg in future because he could not purchase the artificial limb. He stated that he had no money nor any other source of income and artificial limb was necessary for him to walk in proper way. Copy of MLC is Ex.PW1/1, discharge slip is Ex.PW1/2, medical bills are Ex.PW1/3 (colly), X ray report is Ex.PW1/4 (colly), documents with DAR are Ex.PW1/5 (colly), identity card is Ex.PW1/6 and OPD card is Ex.PW1/7. The disability certificate is Ex.PW1/9.
8. PW2 Dr. Govind V. Joshi, Sr. Resident Orthopaedics Department, DDU Hospital deposed that he was a member of the board which examined the injured Raju and issued the disability certificate, Ex.PW1/9 and as per the same, the petitioner was opined to be a case of post traumatic disarticulation at left knee and burn contracture and scarring of left forearm and had total temporary physical disability of 77% in relation to left lower limb and upper limb. The disability was temporary in nature however, there was no possibility of improvement and the condition of the petitioner may remain the same or it may deteriorate. He stated that after fixing of prosthesis the petitioner shall be in a position to walk and do some activities. He stated that the petitioner could do jobs which required only sitting but he would require a stick for moving from one place to another. He stated that the situation of the petitioner would be liable to be reassessed after the period of one year.
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 10 of 49
9. PW3 Shri Rajeev Kumar, Prosthetist and Orthotist professional at Prosthetic and Orthotic Care, deposed that since the petitioner is a case of knee disarticulation prosthesis, he would require prosthesis limb modular design which would require an expenditure of Rs.4,40,000/ and the fitment proposal and other documents in that regard are Ex.PW3/A (colly). He stated that the petitioner would in addition incur maintenance charges from time to time being Rs.10,000/ to 15,000/ per annum. PE was closed on 26.8.2014. It was stated by the learned counsel for the respondent No.3 that no evidence was to be led and RE was closed on 9.7.2014.
10. 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 17.9.2014 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.
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed 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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 11 of 49 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:
"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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 12 of 49 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 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.
13. The case of the petitioner is that on 02.07.2013, at about 5.30 hrs. he along with another person/ driver namely Shri Vinod was working at/ under their traula No.HR56B3144 and also put the stone/ barricade for stopping the vehicle as the vehicle of the petitioner had some technical fault so the petitioner who was the helper on the vehicle set the stone on the wheel of his truck/ traula at 'Dhaula Kuan towards Mayapuri on Naraina Flyover, New Delhi'. During the said process one other vehicle bearing No.HR38J3270 container/ traula came in high speed from the side of Dhaula Kuan which was being driven by the respondent No.1 in a rash and negligent manner and in contravention of the rules of traffic and came in fast speed without giving any indicator and without blowing any horn and hit the vehicle of the petitioner with great force. It was averred that due to the forceful impact the petitioner fell down on the road and the wheel of the offending vehicle dashed over the leg of the petitioner and the petitioner sustained multiple grievous injuries and the petitioner was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. It was stated that in respect of the accident Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 13 of 49 FIR No.160/2013 under sections 279/338/337 IPC was registered at PS Naraina. It was averred that the accident was caused due to the rash and negligent driving of the respondent No.1 who was driving the offending vehicle at the time of the accident in a rash and negligent act and due to his act an innocent person became the victim for the same. In para 2 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition. He deposed that on 2.7.2013 he was working with his driver Vinod and they reached at Naraina Flyover, then suddenly the sappat of the traula broke, the driver took the vehicle on the side of the road and his vehicle was stationary, he and his driver had put bricks and fixed the jack under the traula No.HR 56B 3144, then all of a sudden vehicle No.HR 38J 3270 came at a very fast speed from Dhaula Kuan which was driven by the respondent No.1/ driver in a rash and negligent manner without giving any indicator and without blowing any horn and hit the vehicle and PW1 with very great force and due to the sudden impact PW1 fell down on the road and wheel of the offending vehicle dashed over his leg and he sustained multiple grievous injuries, fracture and amputation in his legs and due to the accident he lost one leg and he became a handicapped person for always. He was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital.
14. The IO had filed Detailed Accident Report, on which reliance has been placed by the petitioner, containing the criminal record consisting of copy of Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 14 of 49 charge sheet; copy of FIR; copies of photographs, copy of site plan; copy of MLC, copy of arrest memo and personal search memo, copy of seizure memos, copy of mechanical inspection report of the traulla bearing No.HR 38J 3270 and of the traulla bearing No.HR 56B 3144, copy of superdarinama along with the order for release of the vehicle on superdari, verification report of the RC of the offending vehicle and verification report of the insurance policy of the offending vehicle along with a copy of the insurance policy, copy of DL of the respondent No.1 along with verification report of the DL of the respondent No.1, copy of fitness certificate of the offending vehicle along with its verification report and copy of Authorisation Certificate of National Permit in respect of the offending vehicle with its verification report and copy of notice under Section 133 MV Act. As per the FIR No.160/13 under sections 279/337 IPC, PS Naraina the case was registered on the basis of complaint of Shri Vinod who was the driver of the truck on which the petitioner was the helper 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 279/338/337 IPC.
15. The respondent No.1 who is the driver and the respondent No.2 who is the owner of the alleged offending vehicle had filed their written statement averring that no accident as alleged had ever taken place. It was averred that the alleged accident was not caused by the driver of the vehicle bearing No.HR38J3270 and the said truck had been falsely implicated in the alleged Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 15 of 49 accident with the connivance of the police in order to harass the respondents No.1 and 2 and to extract money from them. It was averred that the alleged accident, if any had ever happened had been caused by the sole negligence of the petitioner/ driver of the truck bearing No.HR 56B 3144 and the petitioner/ driver/ injured was under the influence of alcohol and was driving the truck bearing No.HR 56B 3144 at a very high speed which resulted in the broken shaft. It was averred that the driver and helper of the vehicle bearing No.HR 56B 3144 had not put any visible mark on the truck so as to inform or indicate to the running traffic about the breakdown of the vehicle as alleged. It was averred that the vehicle bearing No.HR 56B 3144 was not having any indicators behind the traula. It was averred that it was the driver and helper of the vehicle bearing No.HR 56B 3144 who had caused the accident and if indicators had been installed or it had been in proper working condition, the accident as alleged would not have happened. It was averred that the vehicle No.HR 38J 3270 was never involved in the alleged accident as alleged by the petitioner nor the alleged accident was caused by the respondent No.1 and if any accident had ever happened it was because of the sheer negligence of the petitioner/ driver/ helper of the vehicle No.HR 56B 3144 and if the petitioner / driver/ helper were more vigilant the accident could have been avoided. It was averred that the petitioner could not seek compensation for the negligence and wrong committed by the petitioner/ driver/ helper and if the petitioner had sustained any of the alleged injuries it was due to the act of omission, negligence and commission on the part of the petitioner/ driver/ Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 16 of 49 helper of the vehicle No.HR 56B 3144. It was averred that the driver and helper were carrying much above the payload than the prescribed limit on their truck bearing No.HR 56B 3144 which had caused the breakdown of the vehicle and in turn had resulted in the alleged accident. It was averred that admittedly the alleged accident had been caused by the negligence of the driver of the truck bearing No.HR 56B 3144 which was wrongly and rashly driven by its driver without holding a valid driving license. It was averred that the petitioner had parked his truck bearing No.HR 56B 3144 in the central lane of the road and had not used the parking lights or any other clear visible mark behind the truck so as to inform the running/ upcoming traffic that the alleged truck had broken down while the truck No.HR 38J 3270 was being driven in an extremely careful manner. It was stated that the FIR No.160/213 PS Naraina under Sections 279/337/338 IPC was registered falsely by the local police in connivance with the petitioner against the respondent No.1 only to harass and extort money from the respondents No.1 and 2. It was averred that the driver and helper of the truck bearing No.HR 56B 3144 were in a drunk/ inebriated condition and were under the influence of alcohol who had not put any visible mark on their vehicle to inform the upcoming traffic that the said truck had broken down. It was stated that the accident has not been caused due to the negligence of the respondent No.1 nor the truck bearing No.HR 38J 3270 was involved in the accident as alleged. However the respondents No.1 and 2 did not appear to crossexamine PWs.
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 17 of 49
16. During crossexamination by the learned counsel for the insurance company PW1 stated that both the lights of the Traulla were on to indicate that the same was not in a working condition and had been parked. He stated that he had put bricks so that the vehicle did not move ahead or towards the back. He stated that the offending vehicle had hit him and not the Traulla. He stated that what he had stated that day about the offending vehicle hitting him was correct and not what had been stated by the eye witness. He stated that he was on the side of the Traulla when the accident took place volunteered he was standing at the footpath. He denied the suggestion that he was deposing falsely that he was standing at the footpath or that he was standing at the middle of the road. He stated that the speed of the offending vehicle was more than 100 k.m/hr. He denied the suggestion that the accident had taken place due to his negligence and not due to the negligence of the offending vehicle. Thus PW1 stated that both the lights of the traulla were on to indicate that the same was not in a working condition and had been parked. He stated that he had put bricks so that the vehicle did not move ahead or towards the back. It was stated in the written statement filed on behalf of the respondents No.1 and 2 that no indicators were put to inform the upcoming traffic that the truck had broken down whereas PW1 had stated about the lights of the traulla being on. However no independent witness has been examined who could depose about the same. The learned counsel for the insurance company had argued that as per the mechanical inspection report of the traulla of the petitioner it had no indicator on the back and the mechanical inspection report does show Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 18 of 49 that. However that would not show any contributory negligence on the part of the petitioner. He stated that the offending vehicle had hit him and not the traulla and he also stated that what he had stated that day about the offending vehicle hitting him was correct and not what had been stated by the eye witness. He stated that he was on the side of the traulla when the accident took place and volunteered that he was standing at the footpath. As per the written statement filed on behalf of the respondents No.1 and 2 the truck was parked in the central lane whereas PW1 had stated about the truck being taken to the side of the road. A perusal of the site plan also shows that the truck of the petitioner was almost on the side of the road and there is also nothing to show that the petitioner was standing in the middle of the road. Moreover the question is of the offending vehicle hitting the petitioner and not of hitting the traulla and PW1 had stated that the traulla had hit him. It was sought to be contended in the written statement of the respondents No.1 and 2 that the truck of the petitioner was being driven rashly and negligently and was carrying a higher payload than the prescribed limit which resulted in it breaking down but there is nothing to show that the petitioner was driving the truck and he was only a helper on the truck. He stated that the speed of the offending vehicle was more than 100 k.m/hr. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338/337 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 19 of 49 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 a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents No.1 and 2 have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.HR38J3270. 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. In view of the above discussion there is also nothing to show that the petitioner had contributed to the happening of the accident. The learned counsel for the insurance company had argued that it was a case of composite negligence and the petitioner should claim part of the compensation amount from the insurance company of his vehicle. However it is settled law that the claimants can chose the insurer and insured in respect of the vehicles as tort feasors to recover the compensation amount. In Om Wati & Ors. v. Mohd. Din & Ors. 2001 91 DLT 184 (decided by DB of Hon'ble High Court of Delhi) it was observed:
"Coming to the question of 'apportionment' it seems to us that First Appellate Court was in error in holding that claimants would have to forego 30% share of their awarded compensation in favour of the joint tortfeasors of the truck present before the Court as they had failed to implead tort feasors of the car as partyrespondents in their claim suits.Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 20 of 49 This is because the accident could not be wholly treated to be the result of contributory negligence. Even, if it was assumed that the drivers of the two vehicles contributed to the accident in some measure, the other two deceased who were travelling in the car could not be held responsible for any such negligence. Therefore, it was a case of composite negligence in their case. The principle of composite negligence is that where more than one person are responsible for commission of the wrong, the person wronged has a choice of proceedings against all or any one or more. Any one of the wrong doer is liable for the whole damage if it is otherwise made out. In other words the liability of two sets of tortfeasors becomes both joint and several."
Similar is the position in the present case wherein the petitioner was a helper in truck bearing No.HR 56B 3144 and he would have a choice of proceedings against all or any one or more. This judgment was referred to by the Hon'ble High Court of Delhi in Raj Pal Kaur & Ors. v. Pawan Gir & Ors. CM(C)1187/2013 decided on 30.10.2013 and it was held that the FIR was registered against the truck driver and the petitioners/ claimants had rightly sought relief against the said vehicle. In the present case as well the FIR had been registered against the respondent No.1, the driver of the offending traulla and the present petition has been filed seeking relief against the said traulla. Further the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan & Ors., (2008) 3 SCC 748, held: "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 21 of 49 injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Thus it was held by the Hon'ble Supreme Court that each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In the present case the petitioner has proceeded only against the driver, owner and insurer of the offending traulla bearing No.HR38J3270.
17. It was stated that due to the forceful impact the petitioner fell down on the road and the wheel of the offending vehicle dashed over the leg of the petitioner and the petitioner sustained multiple grievous injuries and the petitioner was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. The MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. Thus it stands Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 22 of 49 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
18. 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, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
19. The case of the petitioner is that due to the forceful impact of the accident on 02.7.2013 he fell down on the road and the wheel of the offending vehicle dashed over the leg of the petitioner and the petitioner sustained multiple grievous injuries and the petitioner was removed to DDU Hospital Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 23 of 49 where the MLC was prepared by the doctors of the concerned hospital. It was averred that due to the accident the petitioner received multiple grievous injuries and other serious injuries, wounds, swelling and pain on different parts of the body and the petitioner had spent a huge amount on his treatment and the family of the petitioner also spent a huge amount on his treatment but despite that he lost his leg for always because he received amputation and his leg was amputated and due to the amputation his whole life had become useless and he became unemployed for always because he was not able to stand independently and he could not do his work properly and he spent all his money on conveyance charges, prescriptions and purchasing the medicines and on special diet and other expenses etc but the petitioner was not well till date. It was averred that Rs.2 to 3 lacs were spent on the treatment and the treatment was still continuing till date. It was averred that due to the accident the petitioner and his other family members suffered from mental pain and agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. It was averred that due to the accident the income of the petitioner had become nil for always because due to the amputation the petitioner could not do any work, therefore the petitioner became unemployed for always and was facing great financial losses and other irreparable losses. The petitioner in paras 2 to 4 of his affidavit Ex.PW1/A had deposed to that effect. He stated that due to the sudden impact PW1 fell down on the road and the wheel of the offending vehicle dashed over his leg and he sustained multiple grievous injuries, Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 24 of 49 fracture and amputation in his legs and due to the accident he lost one leg and he became a handicapped person for always. He was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. He stated that he spent a huge amount on his treatment and he also spent more amount on his operation so he spent all his deposited money on his treatment and after spending all the money his family members also arranged some money from relatives which was already spent on his treatment and same was not returned till date by him and the treatment was continuing. He stated that he was unmarried and had become a disabled person. He stated that he would take artificial limb for his leg in future because he could not purchase the artificial limb. He stated that he had no money nor any other source of income and artificial limb was necessary for him to walk in proper way. Copy of MLC is Ex.PW1/1, discharge slip is Ex.PW1/2, medical bills are Ex.PW1/3 (colly), X ray report is Ex.PW1/4 (colly) and OPD card is Ex.PW1/8. The disability certificate is Ex.PW1/9.
20. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained crush injury over his left leg and fracture of right tibia and fibula and his leg was amputated at knee level. The documents also that he was admitted in hospital from 2.7.2013 to 2.9.2013. Thus the injuries were grievous in nature. Further the petitioner had sustained disability in the accident and Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 25 of 49 PW2 had proved the disability certificate Ex.PW2/A and as per the same, the petitioner was opined to be a case of post traumatic disarticulation at left knee and burn contracture and scarring of left forearm and had total temporary physical disability of 77% in relation to left lower limb and upper limb. PW2 had stated that the disability was temporary in nature however, there was no possibility of improvement and the condition of the petitioner may remain the same or it may deteriorate. Thereafter the permanent disability certificate was received as per which also the petitioner was opined to be a case of post traumatic disarticulation at left knee with scarring of left forearm and he had total permanent physical disability of 77% in relation to left lower limb and left upper limb. The disability was permanent in nature. Thus the petitioner had sustained permanent physical disability due to the accident.
21. During crossexamination by the learned counsel for the insurance company PW1 stated that he had not placed on record any document to show that he had borrowed money from relatives and friends. He stated that he had borrowed money from his mama and one Kalu. He denied the suggestion that he had not borrowed money from anyone. He stated that he had not placed on record any advice of the doctor to the effect that he needed an artificial Limb. He denied the suggestion that he had not sustained any disability due to the said accident. He stated that he had sustained injuries on his left leg, knee, foot and on the stomach and back and left hand. He denied the suggestion that the injury sustained by him on the upper limb was so minor that he could Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 26 of 49 not get disability on that account. He denied the suggestion that the disability certificate was a forged, fabricated and procured document as well as the medical bills. Thus PW1 stated that he had not placed on record any document to show that he had borrowed money from relatives and friends. He stated that he had borrowed money from his mama and one Kalu. However the said persons have not been produced in the witness box, even otherwise what is to be seen is the expense incurred by the petitioner. He denied the suggestion that he had not sustained any disability due to the said accident and even the documents on record show that he had sustained permanent physical disability. He stated that he had sustained injuries on his left leg, knee, foot and on the stomach and back and left hand. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent an amount of Rs.2 to 3 lacs on his treatment. The petitioner had filed bills for an amount of Rs.2,750/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would have incurred some expenses even subsequently. Accordingly an amount of Rs.5,000/ is awarded towards medical treatment and expenses including the amount of the bills.
22. It is the case of the petitioner that he would take artificial limb for his leg in future because he could not purchase the artificial limb. He stated that he had no money nor any other source of income and artificial limb was necessary for him to walk in proper way. The petitioner in support of his case Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 27 of 49 in this regard had examined PW3 Shri Rajeev Kumar, Prosthetist and Orthotist professional at Prosthetic and Orthotic Care who deposed that since the petitioner was a case of knee disarticulation prosthesis, he would require prosthesis limb modular design which would require an expenditure of Rs. 4,40,000/ and the fitment proposal and other documents in that regard are Ex.PW3/A (colly). He stated that the petitioner would in addition incur maintenance charges from time to time being Rs.10,000/ to 15,000/ per annum. During crossexamination by the learned counsel for the insurance company PW3 stated that he had personally examined the petitioner. He admitted that Ex.PW3/A was only an estimate and not the final bill. He stated that Prosthetic and Orthotic Care is a clinic run by him which is registered and certificate in his favour from RCI is Ex.PW3/B. He stated that the petitioner had himself contacted him. He denied the suggestion that he was deposing in favour of the petitioner as he was personally known to him. He stated that the petitioner would become mobile if he gets the artificial limb. He could not tell what would be the cost of the artificial limb at the Government Organization but there was definitely a difference in the prices and the price there may be lower. He denied the suggestion that he had deposed falsely about the maintenance charges or that he had deliberately not filed any estimate in that regard as such an amount would not be incurred towards maintenance charges. Thus PW3 stated that he had personally examined the petitioner. He admitted that Ex.PW3/A was only an estimate and not the final bill. He stated that the petitioner would become mobile if he gets the artificial limb. It is Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 28 of 49 pertinent that PW2 had also deposed that after fixing of prosthesis the petitioner shall be in a position to walk and do some activities. As such it cannot be disputed that fixing of prosthesis would be beneficial for the petitioner. PW3 could not tell what would be the cost of the artificial limb at the Government Organization but there was definitely a difference in the prices and the price there may be lower. However even no estimate has been produced by the respondent No.3 in this regard and there is nothing which prevents the petitioner from choosing from where he wants to get the treatment. It is seen that the estimate produced by PW3 is dated 16.5.2014 and there is nothing to show that the petitioner had got the prosthesis fixed and in fact it is his contention that he does not have the money to get the same fixed. Considering the facts and circumstances of the case the petitioner would be entitled to the said amount of Rs.4,40,000/.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
23. 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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 29 of 49 (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 the forceful impact of the accident on 02.7.2013 he fell down on the road and the wheel of the offending vehicle dashed over the leg of the petitioner and the petitioner sustained multiple grievous injuries and the petitioner was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. It was averred that due to the accident the petitioner received multiple grievous injuries and other serious injuries, wounds, swelling and pain on different parts of the body and the petitioner had spent a huge amount on his treatment and the family of the petitioner also spent a huge amount on his treatment but despite that he lost his leg for always because he received amputation and his leg was amputated and due to the amputation his whole life had become useless and he became unemployed for always because he was not able to stand independently and he could not do his work properly and he spent all his money on conveyance charges, prescriptions and purchasing the medicines and on special diet and other expenses etc but the petitioner was not well till date. It was averred that the treatment was still continuing till date. It was averred that due to the accident the petitioner and his other family members suffered from mental pain and agony, loss of income, loss of works, loss of enjoyment, loss of social activities, loss of general or special damages etc. It Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 30 of 49 was averred that due to the accident the income of the petitioner had become nil for always because due to the amputation the petitioner could not do any work, therefore the petitioner became unemployed for always and was facing great financial losses and other irreparable losses. PW1 stated that due to the sudden impact PW1 fell down on the road and the wheel of the offending vehicle dashed over his leg and he sustained multiple grievous injuries, fracture and amputation in his legs and due to the accident he lost one leg and he became a handicapped person for always. He was removed to DDU Hospital where the MLC was prepared by the doctors of the concerned hospital. He stated that he spent a huge amount on his treatment and he also spent more amount on his operation so he spent all his deposited money on his treatment and after spending all the money his family members also arranged some money from relatives which was already spent on his treatment and same was not returned till date by him and the treatment was continuing. He stated that he was unmarried and had become a disabled person. He stated that he would take artificial limb for his leg in future. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and the nature of injuries was opined to be grievous. The documents placed on record show that the petitioner had sustained crush injury over his left leg and fracture of right tibia and fibula and his leg was amputated at knee level. The documents also that he was admitted in hospital from 2.7.2013 to 2.9.2013. Thus the injuries were grievous in nature. Further the petitioner had sustained disability in the accident and PW2 had proved the disability Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 31 of 49 certificate Ex.PW2/A. As per the permanent disability certificate the petitioner was opined to be a case of post traumatic disarticulation at left knee with scarring of left forearm and he had total permanent physical disability of 77% in relation to left lower limb and left upper limb. The disability was permanent in nature. Thus the petitioner had sustained permanent physical disability 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. 85,000/ (Rs.Eighty Five Thousand only) for pain and suffering.
24. The petitioner was 25 years of age and it was so stated in the claim petition. No document showing the age of the petitioner has been placed on record and in MLC his age was stated to be 17 years. During examination by the Tribunal the petitioner had stated that he was 22 years old at present. 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.50,000/ (Rs.Fifty Thousand only) for loss of amenities of life. The petitioner is held entitled to an amount of Rs.25,000/ towards loss of expectation of life and he is awarded an amount of Rs.25,000/ towards disfiguration. He is also awarded an amount of Rs.20,000/ towards loss of marriage prospects and an amount of Rs.1,00,000/ towards permanent disability.
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 32 of 49 CONVEYANCE AND SPECIAL DIET
25. The petitioner in para 3 of his affidavit Ex.PW1/A had stated that he had spent all the money on conveyance etc. 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 after the accident the petitioner was taken to DDU 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.20,000/ (Rs.Twenty Thousand only) would be just and proper towards conveyance charges.
26. The petitioner in para 3 of his affidavit Ex.PW1/A had stated that he had spent all the money on special diet etc. 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.10,000/ (Rs.Ten Thousand only) for special diet.
27. Although the petitioner has not produced any 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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 33 of 49 attendant charges and a sum of Rs.12,000/ is awarded towards attendant charges.
LOSS OF INCOME
28. It is the case of the petitioner that at the time of the accident he was doing private job of helper and was earning from the said job Rs.12,000/ p.m. which was a handsome income to run the expenses of his family but due to the accident the income had become nil for always because due to the amputation the petitioner could not do any work, therefore the petitioner became unemployed for always and was facing great financial losses and other irreparable losses. PW1 in paras 3 and 4 of his affidavit Ex.PW1/A had 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 had studied only till class 2 or 3. He admitted that he is a permanent resident of Bihar. He stated that he had not placed on record any document to show that he was working as a helper or that he was earning Rs. 12,000/ per month. He denied the suggestion that he was not working as a helper or that he was not earning Rs.12,000/ per month. He stated that he used to clean the vehicle, load the goods and do other odd jobs. Thus PW1 admitted that he is a permanent resident of Bihar. He stated that he had not placed on record any document to show that he was working as a helper or Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 34 of 49 that he was earning Rs.12,000/ per month. He stated that he used to clean the vehicle, load the goods and do other odd jobs. As such PW1 himself had stated that he had not placed on record any document to show that he was working as a helper. However it is the case of the petitioner that even the accident had taken place when he was working as a helper. During examination by the Tribunal the petitioner stated that he is illiterate. He stated that at the time of the accident he was working as a helper and was earning Rs.9,000/ to Rs.10,000/ per month. He stated that at present he was not doing anything. Thus he had stated that he was illiterate and there is also nothing to show that he had acquired any skill. In the absence of any documentary proof the income of the petitioner would have to be computed on the basis of minimum wages for an unskilled worker prevalent in Bihar (the accident had taken place in Delhi but the address of the petitioner is of Bihar and there is nothing to show that he was working in Delhi) on the date of the accident i.e. 2.7.2013 which were Rs.4,368/ p.m. approximately i.e. Rs. 52,416/ p.a.
29. The petitioner has not shown that he was advised bed rest for any particular period or that he remained on bed rest for any particular period. The petitioner has also not filed any advice of the doctor by which he was prescribed rest for any specific period. During examination by the Tribunal the petitioner had stated that at present he was not doing any work. However there is nothing to show that the same was on account of the injuries sustained in Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 35 of 49 the accident. In the absence of any advice of 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 amount of Rs.14,000/ on account of loss of income for the period for which he was not able to work.
30. It is the case of the petitioner that he had sustained 77% permanent physical disability. 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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 36 of 49 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 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)."Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 37 of 49 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.
31. The petitioner in support of his case had examined PW2 who deposed that he was a member of the board which examined the injured Raju and issued the disability certificate, Ex.PW1/9 and as per the same, the petitioner was opined to be a case of post traumatic disarticulation at left knee and burn contracture and scarring of left forearm and had total temporary physical disability of 77% in relation to left lower limb and upper limb. The disability was temporary in nature however, there was no possibility of improvement and the condition of the petitioner may remain the same or it may deteriorate. He stated that after fixing of prosthesis the petitioner shall be in a position to walk and do some activities. He stated that the petitioner could do jobs which required only sitting but he would require a stick for moving from one place to another. He stated that the situation of the petitioner would be liable to be reassessed after the period of one year. During crossexamination by the learned counsel for the insurance company PW2 admitted that he had not treated the petitioner volunteered he was treated in their hospital. He stated that he had seen the past treatment record and MLC of the petitioner. He had brought the computation sheet and as per the same, the disability in relation to Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 38 of 49 lower left limb would be 75% and in relation to upper limb would be 10% and there is a formula by which the two are combined and the result is 77%. He stated that the 10% disability in respect of upper limb had been given for cosmetic deformity and there was no functional disability in relation to the upper limb. He stated that the petitioner could do sitting work and he could not do any work which required carrying heavy weights. He denied the suggestion that the disability opined was not as per the injuries sustained by the petitioner.
32. PW2 thus admitted that he had not treated the petitioner and volunteered that he was treated in their hospital. He stated that he had seen the past treatment record and MLC of the petitioner. He had brought the computation sheet and as per the same, the disability in relation to lower left limb would be 75% and in relation to upper limb would be 10% and there is a formula by which the two are combined and the result is 77%. Though PW2 had been examined prior to the issuance of the permanent disability certificate, however the percentage of disability has been opined to be the same. It is pertinent that PW2 stated that the 10% disability in respect of upper limb had been given for cosmetic deformity and there was no functional disability in relation to the upper limb. He stated that the petitioner could do sitting work and he could not do any work which required carrying heavy weights. PW2 had also deposed that after fixing of prosthesis the petitioner shall be in a position to walk and do some activities. Though the petitioner has not produced anything to establish the same it is his case that he was working Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 39 of 49 as a helper and as such his work would involve moving from one place to another. At the same time it is not the case that the petitioner cannot do any work whatsoever or that he cannot pursue any profession at all. The petitioner had stated that he was not doing any work at present but there is nothing to show that the same was on account of the injuries sustained in the accident and as per the medical record while he would have difficulty, he is not prevented from doing his work altogether. The learned counsel for the insurance company had argued that as per PW2 the petitioner could do some work and as regards the upper limb the disability was only cosmetic and the functional disability should be computed accordingly. The petitioner had sustained permanent physical disability of 77% and as per the permanent disability certificate the petitioner was opined to be a case of post traumatic disarticulation at left knee with scarring of left forearm and he had total permanent physical disability of 77% in relation to left lower limb and left upper limb and the disability was permanent in nature which would have effect on the working capacity of the petitioner. 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 40% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 40% of Rs. 52,416/ i.e. Rs.20,966/ approximately p.a.
33. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 18. As regards the future prospects in Rajesh and Ors. Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 40 of 49 v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified 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 his age was less than 40 years the petitioner would be entitled to an increase of 50% in his income for award of compensation towards loss of earning capacity. After applying the multiplier of 18, the petitioner shall be entitled to loss of income i.e. Rs.20,966/X18 = Rs.3,77,388/ + 50% towards future prospects i.e. Rs.3,77,388/ + Rs.1,88,694/ = Rs.5,66,082/ (rounded off to Rs.5,66,000/).
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 41 of 49 Thus the total amount towards loss of income would be Rs.5,80,000/. The total compensation is assessed as under:
Medicines and Medical treatment Rs.5,000/ Towards artificial limb Rs.4,40,000/ Pain and suffering Rs.85,000/ Loss of Amenities of life Rs.50,000/ Disfiguration Rs.25,000/ Loss of Marriage Prospects Rs.20,000/ Loss of Expectation of Life Rs.25,000/ Compensation for disability Rs.1,00,000/ Conveyance Rs.20,000/ Special Diet Rs.10,000/ Attendant charges Rs.12,000/ Loss of Income Rs.5,80,000/ TOTAL Rs.13,72,000/
Thus the total compensation would be Rs.13,72,000/.
RELIEF
34. The petitioner is awarded a sum of Rs.13,72,000/ (Rs.Thirteen Lacs Seventy Two Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The learned counsel for the insurance company had submitted that guidelines have been laid down by the Hon'ble High Court on how the amount for artificial limb Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 42 of 49 is to be disbursed and reliance has been placed on the judgment of the Hon'ble High Court of Delhi in Charanjeet Singh v. Mahavir Singh and Ors. MAC. APP. 110 of 2006 decided on 15.5.2013 wherein it was directed that the amount to be incurred on artificial limb be kept in fixed deposit in the name of the bank initially for a period of two years and as and when the claimant got the electronic artificial limb installed he shall write a letter to the insurance company confirming that he had got the artificial limb installed and he would forward the original invoice to the insurance company. The claimant would thereafter meet the AGM of the insurance company who shall personally see the electronic artificial limb installed by the claimant and shall confirm the same to the bank on the original invoice whereupon the bank shall release the payment to the company and the interest on the fixed deposit earned by that time shall be transferred to the saving bank account of the claimant. It was also directed that in the event of the claimant failing to install the electronic artificial limb within a period of two years, the amount so deposited along with interest thereon would be refunded back by the Bank to the insurance company.
35. 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 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 Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 43 of 49 disbursed as follows:
a) Out of the amount awarded to the petitioner, an amount of Rs.4,40,000/ i.e. the amount to be incurred on artificial limb be kept in fixed deposit in the name of the UCO Bank, Patiala House Court, New Delhi initially for a period of two years and as and when the petitioner gets the artificial limb installed he shall write a letter to the insurance company - respondent No.3 confirming that he had got the artificial limb installed and he would forward the original invoice to the insurance company. The petitioner would thereafter meet the AGM of the insurance company who shall personally see the artificial limb installed by the petitioner and shall confirm the same to the bank on the original invoice whereupon the UCO Bank, Patiala House Court, New Delhi shall release the payment to the respondent No.3 and the interest on the fixed deposit earned by that time shall be transferred to the saving bank account of the petitioner. In the event of the petitioner failing to install the artificial limb within a period of two years, the amount so deposited along with interest thereon would be refunded back by the UCO Bank, Patiala House Court, New Delhi to the respondent No.3. 20% out of the remaining amount be released to the petitioner by transferring it into his savings account and the remaining amount out of his share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:Suit No. 206/14
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1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight 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 Raju within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
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. Suit No. 206/14
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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.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
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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.
36. 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.
APPORTIONMENT OF LIABILITY:
37. The respondent No.1 is the driver, the respondent No.2 is the owner 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. Tata Suit No. 206/14 Raju v Mohd. Nisar & Ors. Page no. 47 of 49 AIG General Insurance Co. Ltd. being the insurance company in its reply had stated that the vehicle was insured with the respondent No.3 vide policy No. 010071477300 from 28.9.2012 to 27.9.2013 for vehicle No.HR 38J 3270 in the name of M/s Loyal Logistics Pvt. Ltd. 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 in respect of the offending vehicle were placed on record by the IO. 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 respondents No.1 and 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 at the rate of 9% from the date of filing of the claim petition till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
38. 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 respondent No.3 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 16.03.2015.
Suit No. 206/14
Raju v Mohd. Nisar & Ors. Page no. 48 of 49 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 12th day of December, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 206/14
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