Delhi District Court
Dristi vs Mufid Khan on 28 September, 2016
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENT CLAIMS TRIBUNAL:
NORTH-EAST DISTRICT : KKD COURTS : DELHI
MACT No. 400/10, New MACT No. 14690/15
FIR No. 216/10,P.S. Seelampur
u/sec 279/337 IPC
DRISTI
D/o Sh. Dharmender
R/o H. NO. 3260, Gali no. 28, Bidan Pura,
Karol Bagh, Delhi. ....... Petitioner
Versus
1. MUFID KHAN
S/o Sh. Dinu Khan
R/o Village Mithupura, Telka Vas, Tehsil Nagar, Distt. Bharatpur,
Rajasthan. ....... Driver
2. PAYAL JAIN
W/o Sh. Bhushan Jain
R/o A-84, Jawala Nagar, Meerut, UP ........ Owner
3. NATIONAL INSURANCE COMPANY LIMITED
Bhagwan Mahavir Marg, Baraut, UP 250611
......... Respondents
i) Date of Institution of Claim petition : 03.12.2010
ii) Date of Decision : 28.09.2016 MACT No. 401/10, New MACT No. 14693/15 FIR No. 216/10,P.S. Seelampur u/sec 279/337 IPC Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 1/32 DHARMENDER S/o Sh. Bhagwan Dass R/o H. No. 3260, Gali no. 28, Bidan Pura, Karol Bagh, Delhi.
....... Petitioner Versus
1. MUFID KHAN S/o Sh. Dinu Khan R/o Village Mithupura, Telka Vas, Tehsil Nagar, Distt. Bharatpur, Rajasthan. ....... Driver
2. PAYAL JAIN W/o Sh. Bhushan Jain R/o A-84, Jawala Nagar, Meerut, UP ........ Owner
3. NATIONAL INSURANCE COMPANY LIMITED Bhagwan Mahavir Marg, Baraut, UP 250611 ......... Respondents
i) Date of Institution of Claim petition : 03.12.2010
ii) Date of Decision : 28.09.2016 MACT No. 402/10,New MACT No. 14691/15 FIR No. 216/10,P.S. Seelampur u/sec 279/337 IPC CHITRA W/o Sh. Dharmender R/o House No. 3260, Gali no. 28, Bidan Pura, Karol Bagh, Delhi.
....... Petitioner Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 2/32 Versus
1. MUFID KHAN S/o Sh. Dinu Khan R/o Village Mithupura, Telka Vas, Tehsil Nagar, Distt. Bharatpur, Rajasthan. ....... Driver
2. PAYAL JAIN W/o Sh. Bhushan Jain R/o A-84, Jawala Nagar, Meerut, UP ........ Owner
3. NATIONAL INSURANCE COMPANY LIMITED Bhagwan Mahavir Marg, Baraut, UP 250611 ......... Respondents
i) Date of Institution of Claim petition : 03.12.2010
ii) Date of Decision : 28.09.2016 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWAR D
1. By this order I shall dispose off three connected matters titled as "Dristi Vs. Mufid Khan & Ors.", " Dharmender Vs. Mufid Khan & Ors." and "Chitra Vs. Mufid Khan & Ors.", filed by the petitioners. Briefly the facts are that on 31.10.2010 at about 9:25 p.m, the petitioner namely Dharmender alongwith his wife namely Chitra and daughter namely Dristi were returning back to their home from the house of their relatives on two wheeler bearing no. DL 6ST 7734. The scooter was hit from behind by the truck bearing no. HR 55H 5499. As a result of which petitioners sustained grievous injuries and the petitioners were removed Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 3/32 to G. T. B Hospital. The FIR No. 216/10 u/sec 279/337 IPC was also registered at PS Seelam Pur, Delhi in this respect.
2. Summons of the petition were issued to the respondents. Joint WS was filed on behalf of respondents no. 1 & 2. It has not been specifically denied that FIR no. 216/10 was registered at PS Seelam Pur against respondent no. 1. According to the respondent, accident was not caused due to the negligence of the respondent no. 1 but due to the sudden slip of scooter and the respondent no. 1 had to apply the brake in emergency. According to respondent, the petitioner was driving the scooter in a rash and negligent manner in the middle of the road.
Respondent no. 3 National Insurance Co. Ld. has also filed WS. It has been admitted that the offending bus was insured vide police no. 361202/31/10/63000004130 w.e.f 04.08.2010 to 03.08.2011 with the respondent no. 3.
3. On the basis of the pleadings of the parties, similar issues were framed in all the three cases as followed. :-
Issues in MACT No. 400/101. Whether petitioner Drishti d/o Sh. Dharmender, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e truck bearing registration no. HR 5SH 5499 by respondent no. 1 Mufid Khan on 31.10.2010, at about 9:25 p.m., at Main Road, New Seelam Pur, Opposite Metro Parking, New Seelam Pur, Delhi within the jurisdiction of Police Station Seelam Pur?OPP
2. Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 4/32
3. Relief Issues in MACT No. 401/10
1. Whether petitioner Dharmender son of Sh. Bhagwan Dass, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e truck bearing registration no. HR 5SH 5499 by respondent no. 1 Mufid Khan on 31.10.2010, at about 9:25 p.m., at Main Road, New Seelam Pur, Opposite Metro Parking, New Seelam Pur, Delhi within the jurisdiction of Police Station Seelam Pur?OPP
2. Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3. Relief Issues in MACT No. 402/10
1. Whether petitioner Chitra, wife of Dharmender , sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e truck bearing registration no. HR 5SH 5499 by respondent no. 1 Mufid Khan on 31.10.2010, at about 9:25 p.m., at Main Road, New Seelam Pur, Opposite Metro Parking, New Seelam Pur, Delhi within the jurisdiction of Police Station Seelam Pur?OPP
2. Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
3. Relief I have heard the counsels for both the parties and gone through the entire evidence on record carefully. My issue wise findings are as below :
5. ISSUE NO. 1 in MACT No. 400/10, 401/10 & 402/10 Issue no. 1 of all the cases relates to the rash and negligent driving Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 5/32 of the offending vehicle and is hence taken up together.
In the MACT no. 400/10 & 401/10 Mr. Dharmender was examined as PW1, who is injured in this case and eye witness in both the cases . His affidavit is Ex. PW 1/X. During cross examination PW 1 i.e Dharmender has deposed that he was driving his two wheeler scooter on the left side of the road and the truck had hit from the backside. It is further deposed that he cannot say whether it was the left side or right side, since he was driving straight and he was hit from the backside. It is further deposed that he was driving at the speed of 35-40km/h and the road was not congested at the time of accident and a number of vehicles were going ahead of him.
In the MACT no. 402/10Ms. Chitra has been examined as PW1 and her affidavit is Ex.PW 1/X. The documents relied upon are FIR Ex. PW 1/1, DL of truck driver Ex.PW 1/ 2, mechanical inspection report Ex. PW 1/ 3,insurance certificate Ex. PW 1/ 4, RC of offending truck Ex. PW1/ 5, permit of truck Ex. PW1/ 6, MLC and original of discharge slip is Ex. PW 1/7, election I card Ex. PW1/ 8, accident information report Ex. PW 1/ 9, medical bills Ex.PW 1/10, additional medical bills Ex. PW1/11, original of quotation from endolite below knee prosthesis is Ex/PW 1/12, disability certificate Ex/PW1/13, medical bills Ex.PW 1/14 & Ex. PW 1/15 , graduation degree and 10th class certificate Ex. PW 1/16 & Ex.PW 1/17.
During cross examination she deposed that she did not see the truck coming from behind as she was seeing towards front since the child was Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 6/32 in her lap. It is further submitted that her husband drives at a normal speed and at the time of the accident he was driving at the speed of 20-25 km/h.
Sh. Vijender Kumar, S/o Sh. Nand Kishore has been examined as PW2 and has tendered his affidavit Ex. PW 2/X. During cross examination he deposed that the accident occurred on 31.10.2010 at about 9:05 pm and he was going ahead of injureds at the distance of about 100-200 meters. It is further deposed that he came to know about the accident as he was telephoned by Chitra and he reached the place of the accident. The public which had gathered there had tried to stop the offending truck but it was fleeing away from the place of accident at the time . He tried to stop the truck and the public also came behind him and they were successful in apprehending the driver of the offending truck with the truck.
Respondents no.1 has not examined any witness. Also, nothing has come forward in the testimony of PWs to disbelieve the version of injured persons regarding the manner of accident. On the other hand, respondent no.1 /driver has also not stepped into the witness box to state as to how accident occurred and to depose that he was not at fault and was not driving the vehicle in rash and negligent manner or that no accident occurred with his vehicle. The respondent no. 1 has already admitted the factum of accident in his W.S. and stated that he had to apply emergency brakes. It was thus expected of him to have entered the witness box and depose the facts on oath.
In all the cases copy of FIR, MLCs, site plan, chargesheet and Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 7/32 mechanical inspection report of vehicle are filed. All PW's, Dharmender, Chitra and Vijender have clearly deposed that the offending vehicle came and hit the vehicle in which the injured persons were travelling.
Also, to determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also a settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 8/32 Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Therefore, in view of the statements of PWs Dharmender and Chitra, it is proved that the all the petitioners have sustained injuries in the accident which occurred on 31.10.2010 due to rash and negligent driving of offending vehicle bearing no. HR 55H 5499 driven by its driver i.e Respondent no. 1. The issue is decided accordingly.
6. ISSUE NO. 2 in MACT No. 400/10 Whether petitioners are entitled to compensation? If so, to what amount and from whom ?
Though, it is stated that an amount of Rs. 2000/- was spent on the treatment of injured but no medical bills has been filed in support of the claim that an amount of Rs. 2000/- was spent on her treatment and medicines.
After careful perusal of the medical documents and in view of the simple injuries i.e a lacerated wound of 2XI cum over occipital region suffered by the injured Dristi, I am of the opinion that a lump sum of Rs. 20,000/- would be as just and reasonable compensation for the injuries suffered by Dristi.
MACT NO. 401/10It is stated by the petitioner in his chief affidavit that he suffered grievous injuries. As per DAR and MLC also, he had suffered grievous injuries and was advised strict bed rest for 3 weeks on 31/10/2010. Petitioner has filed medical bills of Rs. 1,394/- in support of his claim.
As far as income of the petitioner is concerned it is stated by Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 9/32 petitioner in the claim petition that petitioner he was Peon in a Govt. aided School and was earning Rs. 13000/- per month. However, no proof regarding the educational qualification and occupation & income of the petitioner has been filed, though it is stated that he is doing the Govt. job. As per DAR filed by IO, he was earning Rs. 12,244/- per month at the time of accident. As the injured is working in Govt. Department as peon, his income must be Rs. 12,244/- per month. Looking to the nature of injury, it seems that he must have taken rest for two months.
Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble Delhi High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. Looking to the nature of injuries of the injured, it is deemed fit that a lump sum of Rs. 15,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery.
Considering all the facts & circumstances and material on record, I am of the opinion that petitioner is entitled to compensation as under :
Pain & suffering Rs. 35,000/-
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 400/10,401/10 & 402/10 Page 10/32
Special diet Rs. 5,000/-
Conveyance Rs. 5,000/-
Attendant charges Rs. 15,000/-
Loss of Income Rs. 24,488/-
(12,244 X 2)
Medical bills Rs. 1,394/-
___________
Total Rs. 85,882/-
Thus, the total compensation amount is Rs. 85,882/-
MACT No. 402/10It is stated by injured in her statement as well as in chief affidavit that injured has suffered grievous injuries. Petitioner was examined by Aruna Asaf Ali Government Hospital for the purpose of assessing disability and the disability certificate was issued. As per the contents of the disability certificate, petitioner suffers 60% disability w.r.t right lower limb. Petitioner has also suffered amputation of right leg below knee. Petitioner has filed medical bills of Rs. 54,669/- for grant of her medical expenses.
Income of injured:-
As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition that she was giving tutions to school children and also doing stitching of clothes and earned Rs. 12,000/- per month. However, no proof regarding the occupation and income of the petitioner has been filed. She has filed Xth class certificate as well as graduation degree which are exhibited as Ex. PW1/16 and PW1/17.
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 11/32 Though, injured has stated that she was earning member of family being graduate and computer literate and has also stated that she was giving tuition and doing work of stitching of clothes but could not continue her work after the accident however, she has failed to state as to quantum of her monthly income in her entire affidavit filed as examination in chief. Tribunal has thus, no option but to take minimum wages of graduate in order to calculate loss of income. Even if she is considered to be housewife then also minimum wages of graduate are to be taken into account for calculating the loss of gratuitous services to her family in view of the judgment of Division Bench of Hon'ble Delhi High Court in Royal Sunderam Alliance Insurance Company Vs. Master Manmeet Singh 2012 ACJ 721.
In United India Insurance Company Ltd Vs. Babita & Ors. MAC. APP. 967/2011 decided by Hon'ble Justice Sh. G. P. Mittal on 09.10.2012, Delhi High Court also the claim of employment of the claimant was disbelieved and she was considered to be a house wife for deciding the just and appropriate compensation. In the present case also, it has not been duly proved that deceased was working and therefore, she is considered to be a house wife for the purpose of calculation of just compensation.
Age of injured and multiplier:-
As per the disability certificate, petitioner at the time of examination was aged about 26 years. In the petition it is stated that she is 26 years old. In the MLC, her age is 25 years. As per Ex. PW1/17, Xth class certificate her DOB is 19/10/1984 and thus, she was 26 years of age Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 12/32 on the date of accident. Applying the guidelines of the Hon'ble Supreme Court in the judgment reported as "Smt. Sarla Verma vs DTC 2009 AIR (SC) 3104", the multiplier applicable in the present case is 17 for the purpose of calculating future loss of income.
Disability:-
Dr. B. Kanhar, Ortho, Department , Aruna Asaf Ali Govt. Hospital, Rajpura Road, Delhi who has been examined as PW 3, who has proved the disability certificate Ex. PW 1/13.
It is difficult to ascertain in exact terms as to how much the disability in right lower limb has affected the whole body of the petitioner. Considering the age and the fact that her right lower limb is amputated, I am of the opinion that 60% of disability can be considered in relation to whole body for the purpose of calculation of future loss of income / loss of gratuitous service and the present tribunal is not inclined to reduce the percentage of disability qua the whole body in view of the amputation.
The law has been well settled that the compensation has to be awarded in disability injury cases under 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, injured is further entitled to non-pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries (2) loss of prospects of marriage & (3) loss of expectation of life.
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 13/32
7. In India, the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night, unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
11. The Division Bench of the Hon'ble Delhi High Court in Royal Sunderam Alliance Insurance Company Vs. Master Manmeet Singh, 2012 ACJ 721, para 13 has observed, that time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in matters of division of matrimonial properties." As per para 34 of the judgment, the loss of dependency on account of gratuitous services rendered by a housewife is to be calculated on the following basis:-
(i)Minimum salary of a Graduate where she is a Graduate.
(ii)Minimum salary of a Matriculate where she is a Matriculate.
(iii)Minimum salary of a non-Matriculate in other cases.
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 14/32
(iv)There has to be an addition of 25% in the assumed income in (i),
(ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi)If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband's re-marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto 25,000/- (on present scale of the money value) towards loss of love and affection and 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
(ix)Since a homemaker is not working and thus not earning, no Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 15/32 amount should be awarded towards loss of estate. Thus, the compensation for future loss of gratuitous services is calculated as below:-
Rs. 7020/- X 12 X 17 = Rs. 14,32,080/-.
Rs. 14,32,080/- + 3,58,020/- (25% future prospects) = Rs. 17,90,100/-.
Rs. 17,90,100 X 60% (Disability) = Rs. 10,74,060/-. PECUNIARY EXPENSES / COMPENSATION Diet, Conveyance and Attendant Charges:-
Perusal of the medical record of the injured shows that she was under medication and was repeatedly going to the hospital for her regular follow up check ups and therefore, she must have incurred some expenditure on the conveyance. Petitioner has not stated what amount she has incurred and spent on special diet, conveyance and on her attendant.
Keeping in view the nature of injuries suffered by the Claimant i.e permanent disability and amputation of right lower limb and the fact that she was under constant treatment, she would have definitely needed an Attendant to look after her. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of this Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered amputation, some family member would have attended her during her stay in hospital also. Thus, it is deemed fit that a lump sum of Rs. 50,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 16/32 anything for spending money on special diet and conveyance but she has gone for follow up check ups as per the treatment record filed and must have been given special diet for speedy recovery. Thus, Rs. 25,000/- is awarded for special diet and Rs. 20,000/- towards conveyance charges. Treatment Expenses:-
Petitioner has stated that she incurred and spent Rs. 80,000/- on her treatment. However, medical bills of Rs. 54,669/- has been filed in support of her claim . Petitioner is entitled the above said amount spent for her treatment.
Future Treatment Expenses / Aid:-
Sh. Rajinder Kumar, Regional Manager North, Endolite P & O Center has been examined as PW4, who deposed that patient namely Chiltra was registered as a patient in their concern as a she had wanted an Endolite Below System fitted being a case of amputation right leg. They had furnished the quotation explaining the expenses as well as a certificate to her, Ex.PW4/A are the certificate and quotation documents of the patient. The life of the said artificial limb system is of 7-8 years and it further depends upon the use of the limb by the patient. During cross examination he deposed that the amount of artificial limb mentioned by them in their quotation is the fixed from them and no concession in the said amount is to be given to her.
As per Ex. PW4/A the cost of implantation of below knee prosthesis is Rs. 2,82,300/-. This quotation is dated 28/01/2011. Certainly cost of implantation would have increased as it has been more than 5 ½ years since the time when the quotation was given, as per Ex. PW4/A. Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 17/32 The present cost seems would not be less than Rs. 3.5 Lacs in any case.
As per Ex. PW4/A there is three years warranty on Echelon foot and two years warranty on other parts of Endo skeletal system. PW4 has further stated that life of artificial limb is around 7-8 years and thus, it seems that petitioner would at least replace her limb 3-4 times more during her liftime and may also have to purchase the same more than 3-4 times depending upon the number of years she survives. Thus, it is deemed fit that an amount of Rs. 800,000/- be awarded to petitioner towards cost of implantation of the artificial limb and an additional amount of Rs. 200,000/- be awarded towards maintenance cost of artificial limb and future medical expenses etc. As the amount awarded towards implantation of artificial limb and toward its maintenance, cost is calculated as on date and is awarded as per its cost as on date, therefore, petitioner would not be entitled to interest on the above said amount of Rs. 10,00,000/-. However, petitioner shall be entitled to interest @ 9% on the above said amount of Rs. 10,00,000/- from the date of the award till it is deposited by insurance co. with the tribunal.
NON PECUNIARY EXPENSES:-
In Zahid Khan Vs. Arun Mandal and others, 2016 ACJ 1142 in which injured was labourer and suffered 85% permanent disablement due to amputation of right leg, Rs. 100,000/- was awarded as pain and suffering, Rs. 1,50,000/- for loss of amenities, Rs. 1,75,000/- for amputation of leg and disfigurement, Rs. 200,000/- for artificial limb and Rs. 200,000/- for future medical and other expenses.
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 18/32 Accordingly, compensation is calculated as below: NON-PECUNIARY COMPENSATION Compensation towards pain and suffering Rs. 100,000/- Compensation towards loss of amenities Rs. 150,000/- of life Compensation towards disfiguration and Rs.1,75,000/- amputation of leg Total non-pecuniary compensation Rs. 4,25,000/-
PECUNIARY COMPENSATION Loss of Income for 8 months / post Rs. 56,160/- accident Loss of future income due to Rs. 10,74,060/-
permanent disability Compensation towards salary of Rs. 50,000/- attendant Compensation towards special diet Rs. 25,000/-
Compensation towards conveyance Rs. 20,000/-
Medical bills Rs. 54,669/-
Artificial limb Rs. 800,000/- Interest not
payable
Future Medical expenses such as Rs. 200,000/- Interest not
purchase of artificial limb etc. payable
Total Rs. 22,79,889/-
Thus, the total compensation amount is Rs. 27,04,889/-
7. Liability in MACT No. 400/10, 401/10 & 402/12 Sh. Ashutosh Shukla has been examined as R2W2, who submits Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 19/32 that DL no. 2158/FKD/2003 issued in the name of Sh. Mufid Khan and the relevant page of the licence register is Ex. R2W2/1. The relevant pages of the cash book pertaining to new issuance of driving licenses dated 05.04.2003 is Ex. R2W2/2, the relevant page of the renewal page of the endorsement fee cash book dated 21.06.2005 is Ex. R2W2/3. He has also brought the another license register showing issuance of DL no.
2158/FKD/2003 in the name of Sh. Amar Nath Rai, the relevant page of the license register is Ex. R2W2/5 and cash book pertaining to the issuance of the license dated 07.04.2003 is Ex. R2W2/6. He has also brought the renewal cash book register and the relevant page of the same is Ex. R2W2/7. He has also seen the report dated 31.12.2014 sent by their authority to court through post and same is Ex. R2W2/8. During cross examination he deposed that no money has been deposited against both licenses in the Govt. treasury. It is further deposed that he cannot say whether the entries in the DL issuance registers were made later, after the date of accident. He cannot say whether the issuance of two licenses without any corresponding cash deposit in the Govt. Treasury is the result of a collusion between the brokers and their staff. It is further deposed that as per their report Ex. R2W2/8 both the licenses bearing the same no. 2158/KD/2003 were issued after the purported dates of issue mentioned therein and since back dating could not be made in the cash book register, the entries could not be made in the same so both the licenses can be stated to be fake.
Respondent no. 3 has examined Ms. Sarabjeet Oberoi, Administrative Officer(Legal), National Insurance Company has been Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 20/32 examined as R3W1, who has brought the certified copy of certificate of insurance policy bearing no. 361202/31/10/6300004130 valid for the period 04.08.2010 to 3.08.2011 issued for TATA 2515 Ex vehicle bearing registeration no. HR 55H 5499, the certificate of the insurance policy is Ex. R31/1 and the violation of the policy condition is marked at point A to A. It is further deposed that they have also issued notice U/o 12 Rule 8 CPC upon the driver and owner/insured to produce the original insurance policy, original driving license no. 17633/MTR/07 proportedly issued by licensing authority Motor Vehicles Department, Mathura, UP held by the driver Mufid Khan. Office copy of the notice issued to the driver is Ex. R3W1/2 the registry slips is Ex.R3W1/3, copy of the notice issued to the owner is Ex. R3W1/4 the registry slip is Ex. R3W1/5. It is further deposed that in this case the driver of the insured vehicle was having a fake license at the time of the accident dated 31.10.2010. Duly attested report of the IO regarding the same is Ex. R3W1/6 in MACTNo. 401/10, seizure memo of the said license Ex. R3W1/7, copy of the application dated 10.11.2010 of the IO to Incharge Transport Authority, Mathura, UP is Ex. R3W1/8. The report of the licensing authority, Mthura, UP dated 11.11.2010 on the back side of the application of the IO with regard to DL no. 17633/MTR/07 is Ex. R3W1/9, copy of the DL of the driver Mufid Khan is Ex. PW 2/2 and the insurance company is not liable to pay any compensation in the present case as the driver is having fake license.
On 07.07.2015 Ms. Sarabjeet Oberoi was examined again, who has brought the office copy of notice U/o 12 Rule 8 CPC issued upon the driver, Sh. Mufid Khan, and owner Ms. Payal Jain by their counsel Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 21/32 calling upon them to produce the original driving license bearing no. 2158/Farukhabad/03 purportedly issued by the licensing Authority, Motor Vehicle Department, Fateh Garh, Farukhabad and the original RC, Fitness, permit and the insurance policy of truck no. HR 55H 5499 valid at the time of accident dated 31.10.2010, office copy of the notice is Ex. R3W1/10, registry slips are Ex. R3W1/11 to R3W1/13. It is further deposed that in this case the above mentioned license produced by the driver of the offending vehicle is fake. The insurance company does not have any liability to indemnify the insured as the driver was holding the fake license at the time of accident and there has been willful and deliberate violation of the terms and conditions of the insurance policy and insurance company has no liability to pay any compensation.
Sh. Raj Kumar Sharma, Clerk, Licensing Authority, ARTO, Mathura, UP has been examined as R3W2, who has brought the original register containing the record pertaining to issuance by their authority of driving license no. 17566 to17839/MTR/2007 for the period 13.12.2007 to 19.12.2007. The relevant page containing the issuance of DL no. 17633/MTR/2007 is exhibited as Ex. R3W2/1,covering page of the register is Ex. R3W2/2. As per their record the DL no. 17633/MTR/2007 has been issued by their authority in the name of Sh. Sunil Saini, S/o Sh. Mohan Singh, R/o Laxmi Nagar, Birla Mandir, Mathura, UP. The said license was issued on 15.12.2007 and was valid upto 14.12.2027, the said license was issued in the category of motorcycle and LMV. He has seen the copy of original license exhibited as Ex. PW 2/2 in MACT no. 401/10 titled Dharmender Vs. Mufid Khan, he state that the said DL is fake and Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 22/32 same has not been issued from their authority in the name of Sh. Mufid Khan.
In the present case IO has seized DL of the driver, copy of which is filed in the DAR. This licence was allegedly issued from the Licencing Authority, Mathura and is bearing no. 17633/MTR/2007. However, testimony of R3W2 has clearly proved that this licence has not been issued from the Licencing Authroity, Motor Vehcile Department, Mathura and was hence fake. Thereafter, owner and driver supplied the copy of licence of respondent no. 1 allegedly issued from Farukhabad and even witness R2W2 was summoned from the office of ARTO, Farukhabad, U.P. R2W2 has also stated that licence bearing no. 2158/FKD/2003 is fake as the corresponding fee for the issuance of licence is found to be not deposited on checking of cash book. Respondent no. 1 has not entered into the witness box to depose that he had passed the driving test and had appeared before the Farukhabad Licencing Authroity for issuance of the licence. Licence mark A issued from the office of Asst. Regional Transport Officer, Fatehgarh - Farrukhabad, U.P. was endorsed for HTV on 21/06/2008. If the respondent no. 1 has undergone any training for learning to drive heavy transport vehicle or heavy passenger motor vehicle then he should have led cogent evidence and should have entered into the witness box to state from which training school he had obtained training for driving Heavy Transport Vehicle before getting his licence endorsed for Heavy Transport Vehicle from the office of ARTO, Farukhabad. He has also not entered into witness box to state that he has deposited the requisite fee for issuance of licence and had passed the Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 23/32 requisite driving test and thereafter, got the licence issued from the Farukhabad Authority. As no such evidence is led on behalf of respondent no. 1 and 2 they have failed to prove that licence of respondent no. 1 allegedly issued from Farukhabad Licencing Authority is a genuine licence.
In Lal Chand vs Oriental Insurance Co. Ltd 2006 ACJ 2161, it was observed, "the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time."
In United India Insurance Co. Ltd. vs. Lehru and Others, (2003) 3 SCC 338, it is held as under
" When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 24/32 there would be no breach of Section 149(2)( a )( ii ). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia (1987) 2 SCC 654, Sohan Lal Passi (1996) 5 SCC 21 and Kamla (2001) 4 SCC 342 cases. We are in full agreement with the views expressed therein and see no reason to take a different view."
Premkumari & Ors vs Prahlad Dev & Ors AIR 2008 SC 1073, it was observed as under:
"It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the Insurance Company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive."
In United India Insuarnce Company Limited Vs Raj Bahadur alias Raju Bahadur 2013 (1) T.A.C. 429 (HP), also it is observed as under:
"the mere fact of fake licence is not enough to absolve the liability of the appellant-insurance company. For that, the Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 25/32 insurance company was required to prove that the owner was guilty of the breach of the conditions of the insurance policy and lead the evidence that the owner of the vehicle/insured had reasons to know that the licence was fake and forged."
Respondent no. 2 registered owner has filed her affidavit and her cross-examination was deferred on 17/10/2014. Thereafter, despite repeated opportunities the respondent no. 2 failed to appear for her cross- examination and RE was closed vide order dated 08/12/2015. As the respondent no. 2 has not appeared for her cross-examination therefore, affidavit filed by her in support of her examination in chief cannot be read for disposal of the present petition. Owner thus, has failed to state that she has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has not satisfied herself that the driver has a licence and is driving competently. Owner has thus admittedly breached the section 149 of MV Act and the insurance co. is entitled to recovery right.
Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 and 2 and my thereafter, recover from respondent no. 1 and 2.
8. Relief in MACT No. 400/10Father of injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that injured is 9 Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 26/32 years old and studying in Vth standard. He has stated that the amount he would get from the tribunal will be utilised by him on the welfare of minor child Drishti.
Award is passed directing Respondent no. 3 National Insurance Company Ltd. to pay a sum of Rs. 20,000/- (including interim compensation, if any) to the petitioner along with interest @ 9% per annum from date of filing of the petition (03.12.2010) till date of realization. Payment is to be made by depositing cross cheque in favour of father of petitioner Dharmender having account no. 2011101019617 in Canara Bank, Kamla Nagar, Delhi. The respondent no. 3 is directed to deposit the award amount along with interest within thirty days from today. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
9. Relief in MACT No. 401/10Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein he stated that he is 10th class passed and presently employed in Education Department of Govt. and earning Rs. 30,000/- per month. He has two minor children one daughter and one son. He has stated that the amount he would get from the tribunal will be utilised by him on his treatment.
Award is passed directing Respondent no. 3, National Insurance Company to pay to the petitioner no. 1 a sum of Rs. 85,822/- (including interim compensation, if any) by way of depositing cross cheque in favour of petitioner Dharmender having account no. 2011101019617 in Canara Bank, Kamla Nagar, Delhi along with interest Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 27/32 @ 9% per annum from the date of filing of the claim petition (i.e. 03.12.10). If award is not complied within 30 days, respondent no. 3 shall pay penal interest @ 12% p.a. for the default period.
10. Relief in MACT No. 402/10Injured was examined as per clause 26 of the Modified Claims Tribunal Agreed Procedure wherein she stated that she is B.Com Pass and housewife. She has two minor children i.e one daughter and one son. She has stated that the amount she would get from the tribunal will be utilised by her on her artificial limb and on the education and welfare of her children.
Injured is entitled to an amount of Rs. 27,04,889/-. Out of the abovesaid award amount, an amount of Rs. 10,00,000/- alongwith corresponding interest (from the date of award) is be deposited by way of separate cheque with the present tribunal and the same be kept in separate account and the amount be utilised for implantation of artificial limbs of the injured and for expenses to be incurred for its repair / replacement in future from time to time.
Accordingly, Respondent no. 3 National Insurance Company Ltd. is directed to pay a sum of Rs. 17,04,889/- (including interim compensation, if any). by way of depositing cheque in the account of Chirta, petitioner no. 1 having account in State Bank of India, Gulabi Bagh, Delhi bearing account no. 10208381735 along with interest @ 9% per annum from date of filing of the petition (03/12/2010) within 30 days. In default, respondents no.3 shall be liable to pay penal interest on the award amount @ 12% p.a. for the default period.
Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 28/32 In Reliance General Insurance Co. Ltd. Vs. Vimla Devi, MAC APP. 547/2016 vide its order dated 25/07/2016 Hon'ble High Court of Delhi has observed that "This court is of the view that if the deceased would have been alive, his family members would have received a portion of his income every month and not a lump sum amount at any point of time. The purpose of awarding compensation is to put the family members of the deceased in the same financial position. As such, it would be appropriate to ensure that the family members get reasonable amount of compensation every month like they would have received if the deceased had been alive".
As per clause 28 of the Modified Claim Tribunal Agreed Procedure ,depending upon the financial status and financial need of the claimant, the tribunal has to release the amount as considered necessary and remaining amount be kept in FDR in phased manner. Injured, if would have kept on earning or working, she would have received monthly salary and not lumpsum amount at any point of time.
Bank Manager, State Bank of India, Gulabi Bagh, Delhi is thus, directed to keep a sum of Rs.15,00,000/- in fixed deposit in the following manner and the remaining amount be released in her account.
Sr. No. Duration of FDR Petitioner no. 1 FDR
amount
1 1 year Rs. 100,000/-
2 2 years Rs. 100,000/-
3 3 years Rs. 100,000/-
4 4 years Rs. 100,000/-
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 400/10,401/10 & 402/10 Page 29/32
5 5 years Rs. 100,000/-
6 6 years Rs. 100,000/-
7 7 years Rs. 100,000/-
8 8 years Rs. 100,000/-
9 9 years Rs. 100,000/-
10 10 years Rs. 100,000/-
11 11 years Rs. 100,000/-
12 12 years Rs. 100,000/-
13 13 years Rs. 100,000/-
14 14 years Rs. 100,000/-
15 15 years Rs. 100,000/-
Total Rs. 15,00,000/-
11. The Bank shall further comply with following directions :-
(a) The interest on the fixed deposits be paid monthly to the injured.
(b) The monthly interest be credited automatically in the saving account of the claimant.
(c) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant.
(d) No cheque book be issued to the claimant without permission of the court. However, a photo identity card be issued to the claimant and the withdrawal be permitted upon Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 30/32 production of the identity card.
(e) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the court.
(f) The Bank shall not permit any joint name to be added in the savings bank account or fixed deposit accounts of the victim.
(g) Half yearly statement of account be filed by the Bank in the Tribunal.
Copy of the award be sent to the Nodal Officer of the Canara Bank, Kamla Nagar, Delhi and State Bank of India, Gulabi Bagh, Delhi alongwith the court stamped copy of the photographs, specimen signatures, proof of residence and bank account details of the petitioner. (as per clause 27 of the Modified Claim Tribunal Agreed Procedure).
A separate cheque in the name of PO, MACT , North East for an amount of 10,00,000/- alongwih interest 9% per annum from date of award (28/09/2016) be also deposited by the insurance company towards cost of artificial limb within 30 days of the award . In default, respondents no.3 shall be liable to pay penal interest on the abovesaid amount @ 12% p.a. for the default period . The petitioner can approach the present tribunal from time to time for release of the above amount for implantation of the artificial limb. It is further directed that amount shall be released to Endolite India Limited directly from tribunal as per bills / quotation received for implantation of the artifical limb and its maintenance from time to time.
Attested copies of the award be furnished to the concerned Kiran Bansal P.OMACT (NorthEast) MACT No. 400/10,401/10 & 402/10 Page 31/32 parties from court for compliance and be sent to the court of concerned Ld. MM & DLSA.
12. Put up for compliance on 28/10/2016.
Pronounced in Open Court on (KIRAN BANSAL)
28/09/2016 P.O. MACT(North-East)
KKD Delhi
Kiran Bansal
P.OMACT (NorthEast)
MACT No. 400/10,401/10 & 402/10 Page 32/32