Delhi District Court
Smt. Kamlesh Aggarwal W/O Sh. Arjun ... vs Sh. Vijay S/O Sh. Ranjit Singh Rajpur on 6 January, 2016
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MOTOR
ACCIDENT CLAIMS TRIBUNAL : NORTHWEST DISTRICT
ROHINI COURTS: DELHI
MACT No. : 692/09
UNIQUE ID No. : 02404C0343022009
Smt. Kamlesh Aggarwal W/o Sh. Arjun Aggarwal,
R/o B4, Panchwati Colony,
Indra Nagar, Azadpur, Delhi. ....(Injured/Petitioner)
Versus
1. Sh. Vijay S/o Sh. Ranjit Singh Rajpur,
R/o H.No. 253, Malik Colony, Near P.G.I.,
Chandigarh. .....(Driver/Respondent No. 1)
2. Sh. Sumit Sharma S/o Sh. Mukesh Sharma, R/o H.No. 3258/2, Sector41D, Chandigarh. .....(Owner/Respondent no. 2)
3. The New India Assurance Company Ltd., SCO, 104106, Sector34A, Chandigarh. ....(Insurer/Respondent No.3) MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 1 of 32 2 Other details: DATE OF INSTITUTION : 23.11.2009 DATE OF RESERVING ORDER : 04.01.2016 DATE OF PRONOUNCEMENT :06.01.2016 AWARD/JUDGMENT
1. The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by the petitioner/injured namely Smt. Kamlesh Aggarwal whereby she has claimed compensation to the tune of Rs. 20 lacs alongwith interest at the rate of 18% per annum from Sh. Vijay/R1, Sh. Sumit Sharma/R2, who were the driver and owner of the offending vehicle respectively at the relevant time and from The New India Assurance Company Ltd./R3, who was the insurer of the offending vehicle from the date of filing of petition till realisation of compensation amount.
2. Brief facts of the case as revealed from the petition are that on 29.01.2009, the petitioner/injured Smt. Kamlesh Aggarwal alongwith her husband namely Sh. Arjun Kumar Aggarwal, their daughter Ms. Neetu Aggarwal and their son was going to MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 2 of 32 3 Panchkula in their car bearing registration No.DL4CAG3978, which at the relevant time was driven by their driver namely Sh. Rampreet. When they reached at GTK Road near Kumaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, between 3:304:00 pm, suddenly an Innova car bearing registration No. CH022408 (hereinafter referred to as the "offending vehicle") which at the relevant time was driven by Sh. Vijay/R1 in a rash and negligent manner came from the opposite side at high speed which hit the car of the petitioner due to which the accident occurred wherein apart from her husband, and daughter Ms. Neetu Aggarwal, the petitioner and their driver Sh. Rampreet also sustained injuries. They were initially admitted in General Civil Hospital, Sonipat, Haryana by the officials of traffic mobile van which arrived at the spot soon after the said accident, however, on the way to hospital, the driver of their car succumbed to his injuries and expired. It is further submitted that the petitioner and her other family members were also treated at Maharaja Agrasen Hospital, Delhi.
MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 3 of 32 4 The petitioner has further submitted that at the relevant time, she was self employed as she used to run a boutique from which she used to earn Rs. 14,000/ per month. The petitioner has further submitted that due to various injuries sustained by her in the said accident, she had suffered from various fractures and has become permanently disabled. She has also contended that she had spent a huge amount on her medical treatment etc. and has suffered from physical pain, mental torture and huge financial loss as she could not attend to her work for a considerably long time. It is further submitted that with respect to the said accident, FIR No.31/2009 U/s 279/337/338/304 IPC was registered at PS Murthal, District Sonipat, Haryana against R1, wherein he was prosecuted.
The petitioner has prayed that compensation in sum of Rs.20 lacs alongwith interest at the rate of 18% per annum be awarded in her favour and all the respondents are liable to pay her the said compensation amount jointly as well as severally as Sh. Vijay/R1 and Sh. Sumit Sharma/R2 were the driver and owner of the offending vehicle respectively at the relevant time MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 4 of 32 5 and the New India Assurance Company Ltd./R3, was the insurer of the offending vehicle from the date of filing of the claim petition till realisation of the said amount.
3. As per record, R1 & R2, who were the driver and owner of the offending vehicle have filed their written statement, wherein they have interalia submitted that they are not liable to pay any compensation amount as prayed by the petitioner because R1 was neither at fault nor he was rash and/ or negligent in driving the offending vehicle.
They have further submitted that the said accident occurred due to sole negligence of driver of the car, wherein the petitioner alongwith her family members was traveling. It is also submitted that the offending vehicle was duly insured with R3 and so, R1 & R2 are not liable to pay any compensation amount to the petitioner.
4. The New India Assurance Company Ltd./R3 has also filed its written statement wherein it has interalia submitted that the driver of car in which the petitioner alongwith her family members was traveling himself was negligent and R1 was MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 5 of 32 6 driving the offending vehicle properly and so, it is not liable to pay any compensation amount as claimed. It has also admitted that the offending vehicle was duly insured with it vide policy No.350200/31/08/01/00005149, which was valid w.e.f 18.10.2008 to 17.10.2009 in the name of Sh. Sumit Sharma/R2.
5. As per record, after completion of pleadings of parties, following issues were framed by my Ld. Predecessor vide order dt. 28.05.2011:
1. Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which the petitioner was traveling and caused injuries to her?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
6. It is not out of place to discuss that as per record, my Ld. Predecessor vide order dt. 07.01.2012 had observed that the MACT petition Nos. 693/09, 692/09, 691/09 & 690/09 are MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 6 of 32 7 consolidated for the purpose of recording of evidence, being connected cases arising out of the same accident and he has directed that evidence would be recorded in MACT petition No. 693/09.
7. As per record, in MACT petition No. 693/09, the petitioner has examined herself as PW2, her husband namely Sh. Arjun Aggarwal as PW1, who is also one of the injured and is an eye witness of the accident. The petitioner has further examined Dr. Jitender (Specialist, Orthopaedic, BSA Hospital, Delhi) as PW6 to prove here permanent disability.
8. As per record, the New India Assurance Company Ltd./R3 has also examined two witnesses namely Sh. Basant Kumar Rohtagi, (Dy. Manager for New India Assurance Company Ltd.) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, U.P) as R3W2.
As per record, none of the other respondents have adduced any evidence, who were proceeded exparte by my Ld. Predecessor.
9. I have heard final arguments as advanced by Advocate MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 7 of 32 8 Sh. Yogesh Narula, Ld. Counsel for the petitioner & Advocate Sh. R.P. Mathur, Ld. Counsel for The New India Assurance Company Ltd./R3. None on behalf of R1 & R2 has advanced final arguments. Now, I proceed to discuss the issues in the succeeding paragraphs.
10. Issue no. 1 "Whether on 29.01.09 at about 3:304:00 pm at GTK Road near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana vehicle No. CH022408 which was being driven rashly and negligently hit the car in which the petitioner was traveling and caused injuries to her?"
11. The petitioner has examined herself as PW2 and her husband namely Sh. Arjun Kumar Aggarwal is examined as PW1 who is also a material witness and has further examined Dr. Jitneder Singh, (Specialist, Orthopedic, BSA Hospital, Delhi) as PW6 to prove her permanent disability.
12. It is pertinent to discuss that PWs1 & 2 are the witnesses of the said occurrence/accident as they were traveling in their car bearing registration DL4CAG3978 alongwith their children MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 8 of 32 9 and in the said accident, they also sustained injuries.
They have adduced their evidence by way of their respective affidavits which are proved as Ex.PW1/A & Ex.PW2/A and they have also relied upon various documents, which are proved as Ex.PW1/1 to Ex.PW1/21 as well as documents Ex.PW2/1 to Ex.PW2/8.
13. Sh. Arjun Kumar Aggarwal, who is the husband of the petitioner/injured and is examined as PW1 has testified by way of his affidavit Ex. PW1/A wherein he has deposed that at the relevant date, time and place, he alongwith the petitioner/injured namely Smt. Kamlesh Aggarwal, (who is his wife and is examined as PW2) alongwith their son and their daughter Ms. Neetu Aggarwal (who later on died due to injuries sustained in the said accident) was going to Punchkula in their car bearing registration No. DL4CAG3978, which at the relevant time was driven by their driver namely Sh. Rampreet and when they reached at G.T.Road, near Kamaspur Mor, Omax City, PS Murthal, Sonipat, Haryana, suddenly the offending vehicle i.e Innova Car bearing registration No. CH022408, which at the MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 9 of 32 10 relevant time was driven by R1 in a rash and negligent manner came from the opposite side at high speed and it hit against their car due to which the accident took place wherein she and her other family members and their driver sustained injuries. They were initially admitted in General Civil Hopsital, Sonipat by the officials of traffic mobile van, which arrived at the spot soon, however, the driver of their car succumbed to his injuries on the way to hospital and expired. He has also testified that thereafter, they were also admitted in Maharaja Agrasen Hospital, Delhi, where their daughter Ms. Neetu Aggarwal expired on 31.01.2009 during the course of her treatment, due to injuries sustained in the said accident. The petitioner has also testified that in the said accident, she also sustained severe injuries and fractures, due to which she got permanently disabled to a considerable extent and their car bearing registration No. DL4CAG3978 was also completely damaged.
14. Smt. Kamlesh Aggarwal (PW2) has also testified by way of her affidavit Ex. PW2/A wherein she has deposed about the said MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 10 of 32 11 accident. She has testified that the accident was caused by R1 by driving the offending vehicle at a high speed and in a rash and negligent manner. It is pertinent to discuss that she has deposed on the lines of Sh. Arjun Kr. Aggarwal (PW1) and hence, her testimony is not repeated for the sake of brevity.
15. It would be pertinent to discuss here that no cross examination to any of these witnesses was offered by or on behalf of R1 & R2, who were the driver and owner of the offending vehicle on any aspect at all and accordingly, R1 & R2 have admitted in totality the entire versions of PW1 & PW2 as correct on all material aspects. It is well settled law that if a witness is not crossexamined on any aspect, then it amounts to truthfulness of the same. In the case in hand, the testimonies of PW1 & PW2 are nowhere rebutted or controverted at all by or on behalf of R1 & R2. Further, after going through their entire versions, it seems that they have testified in a straight forward, cogent and convincing manner. In the given facts and circumstances, R1 & R2 have clearly admitted that at the relevant date, time and place, R1 was driving the offending MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 11 of 32 12 vehicle at a high speed in a rash and negligent manner and while driving so, he struck the offending vehicle against the car of the petitioner wherein she was traveling alongwith her husband, daughter and son due to which the said accident took place wherein the petitioner also sustained grievous injuries.
16. As per record, PW1 & PW2 were crossexamined on behalf of the New India Assurance Company Ltd./R3 during which they have stated that they alongwith their family had left Delhi for going to Punchkula at about 2:30 pm. They have also stated that there was a divider between the road from Delhi to Punchkula and have denied if at all, their car was on the wrong side of the road. It is pertinent to mention here that rest of their crossexamination refers to the medical treatment and regarding income and medical expenses etc. which is not relevant to discuss the issue in hand.
17. After going through the entire testimonies of PW1 & PW2, who are the most material witnesses of the occurrence/accident being eye witnesses, there is nothing on record to disbelieve their versions. In fact, both of them have testified before the MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 12 of 32 13 court in a cogent and convincing manner and there is no reason to doubt either their presence at the spot or to doubt their witnessing the said occurrence. In fact, it is rather shown and proved on record that PW1 & PW2 were traveling alongwith their children in the car bearing registration No. DL4C AG3978 which was driven by their driver and R1, while driving the offending vehicle in a rash and negligent manner and at high speed caused the said accident as testified by PW1 & PW2 wherein the petitioner/injured also sustained various injuries. The testimonies of PW1 & PW2 do not seem to suffer from any inherent infirmity or artificiality or exaggeration and there is nothing on record to raise doubt regarding the authenticity of their depositions in as far as they have come forward with true picture of the occurrence/accident.
Further, the certified copies of the criminal case are also placed on record including the copies of FIR No.31/2009, U/s 279/337/338/304 IPC at PS Murthal, District Sonipal, Haryana and charge sheet u/s 173 Cr. PC which are not challenged or disputed by any of the respondents which clearly show that R1 MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 13 of 32 14 was prosecuted in the said case regarding causing the said accident wherein the petitioner/injured also sustained various injuries.
Admittedly R1 has not lodged any complaint to any higher authority regarding his alleged false implication in the said criminal case and has not alleged or submitted that he had any enmity with the deceased or his family members or with the investigating officer and so, the possibility of his false implication in criminal case does not exist.
18. Accordingly, in the given facts & circumstances, on the basis of material produced and proved before the court and in view of aforesaid discussion, in considered opinion of the court, the said accident was caused by R1 while driving the offending vehicle in a rash and negligent manner at the relevant date, time and place wherein the petitioner also sustained injuries and hence, Issue No.1 is decided in favour of the petitioner and against the respondents.
19. Issue No.2 Qua Quantum of Compensation "Whether petitioner is entitled to compensation, if so, to MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 14 of 32 15 what amount and from whom?"
20. Loss of earning capacity In the case in hand, the petitioner has also examined Dr. Jitender (Specialist Orthopedic, BSA hospital, Delhi) as PW6, who has proved the disability certificate of the petitioner as Ex.PW6/A and has testified that the petitioner had suffered from permanent disability to the tune of 40% with respect to her right lower limb. He has also deposed that due to the same, she could not sit cross legged on the floor and she cannot squat and has also deposed that the petitioner cannot walk normally as a normal adult.
He was not crossexamination by or on behalf of R1 & R2 on any aspect and they have not disputed his version at all. During his crossexamination on behalf of insurance company/R3, he has interalia stated that the assessment for disability of petitioner was done on the basis of guidelines issued by Ministry of Social Justice and Empowerment for the assessment of Loco Motor Disability. As such, nothing is shown on record to disbelieve the version of Dr. Jitender (PW6) MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 15 of 32 16 or to doubt the extent of permanent disability suffered by the petitioner.
It cannot be lost sight of that as per the petitioner, she used to run a boutique which would involve cutting, tailoring and stitching of clothes and as per record, the said occupation of the petitioner is not under dispute by any of the respondents.
As per the petitioner, she used to work on the stitching machine from her feet as well but due to the permanent disability suffered by her in the said accident, she had got totally incapacitated as her right lower limb is permanently adversely effected. It cannot be ignored that in such a work, both the limbs work together in consonance with each other and hence, in the given facts and circumstances when the right lower limb of petitioner is not at all in working condition, hence, her left lower limb also would not respond properly in her occupation of tailoring. Accordingly, the contention of the petitioner that none of her lower limbs enable her in doing her work seems justified.
In the given facts and circumstances and on the basis of the MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 16 of 32 17 aforesaid, in considered opinion of the court, the permanent disability of petitioner is assessed as 30% all over body.
The Petitioner has also placed on record the copy of her PAN card wherein her date of birth is shown as 14.01.1963 which is not under dispute and so, the petitioner was about 46 years of age as on the date of said accident. Hence, in view of above, as per observations made in case of Sarla Verma and Others vs Delhi Transport Corporation Respondent 2009 ACJ 1298, the multiplier of '13' is applicable in the present case.
21. Loss of income The petitioner has examined herself as PW2 and has also deposed that she was running a boutique from which she was earning Rs. 14,000/ per month. During her cross examination, she has clearly stated that she has no document to show her income except ITRs which she proved as Ex. PW2/5.
The petitioner, in order to prove her income has also examined Sh. Ram Prasad Bhatia, (Office Superintendent, Income Tax Office, Delhi) as PW1A who had brought the summoned record pertaining to the assessment years 200708 MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 17 of 32 18 (financial year 200607), 200809 (financial year 200708) and 200910 (financial year 200809). He has testified that as per record, in the assessment year 200708 (financial year 200607), the gross total income of the petitioner was Rs. 1,42,493/, further, for the assessment year 200809 (financial year 200708), the gross total income of petitioner was Rs. 1,47,296/ and for the assessment year 200910 (financial year 200809) her gross income was Rs. 1,89,323/. He has also filed verified the copies of the said ITRs and proved them collectively as Ex. P1. He has further testified that he has been authorised to do appear and prove the said record vide letter Ex. P2 issued by the ITO.
During his cross examination on behalf of New India insurance co./R3, he has interalia stated that the prints of the said record was taken out from the office computer by the concerned ITO namely Ms. Sunita Gupta by putting user ID of petitioner and she has authorised him to produce the said document/ITRs in the court after due their verification. He has also stated that the entire DATA for whole of India is saved at MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 18 of 32 19 Banglore and has also clarified that the said ITRs were filed in Delhi through Efiling and then, the said DATA is sent to Banglore. He has also stated that concerned ITO is authorised to take out the data by using specific user ID and except the ITO and the applicant, none else can take out or can access the DATA. He has also stated that ITR for the assessment year 200910 i.e. financial year 200809 does not bear signature of the applicant or of the officials and has further stated that the official do not put their signature and only official stamp and number of filing is affixed on the ITR which is a common practice.
As per record and from the testimony of petitioner, it is shown that she had filed ITRs for the said period and in order to prove the same, she has also examined Sh. Ram Prasad Bhatia (PW1A) who has also duly proved the said ITRs. Though, PW1A was cross examined at length on behalf of insurance co/R3, yet nothing is shown on record if PW1A has testified falsely or if the documents as proved by him which are the ITRs of the petitioner also pertaining to the year wherein the said MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 19 of 32 20 accident occurred (i.e. 29.01.2009) and it also include the ITRs two years prior to the said accident are false or fabricated. The said ITRs show an increasing trend in the income of the petitioner as already revealed from the testimony of PW1A and from documents ExP1.
It also needs to be discussed here that the said ITRs were filed by the petitioner at Delhi Office which were stored at Central Processing Centre at Banglore and all ITRs through out India are stored at office at Banglore. Further, it is also shown that the concerned ITO is authorised to use a specific user ID and password to take out the requisite data if so required and except the applicant and ITO, none else can have access to the same.
In considered opinion of the court, PW1A has testified before the court in a cogent and convincing manner and there is no reason to doubt the authenticity of documents i.e. ITRs of petitioner as proved on record and PW1A has also proved the authority letter Ex. P2 vide which Ms. Sunita Gupta, the concerned ITO has authorised him to come to the court MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 20 of 32 21 alongwith verified copies of the said ITRs. It is also mentioned in Ex. P2 that the copies of the said ITRs are the generated copy of the returns filed by petitioner. As such there is nothing on record to show if the said documents as proved by PW1A are false or fabricated or if they are not the true copies of the ITRs as filed by the petitioner for the said years. During lengthy cross examination of PW1A, there is nothing on record to disbelieve his version or to doubt the authenticity of ITRs of the petitioner. From the said ITRs, it is shown that income of the petitioner was rising and it needs to be discussed that in the income tax returns pertaining to financial year 200809, his income is shown as Rs. 1,89,323/. It also needs to be discussed here that the said return was filed by him on 30.07.09 and the accident occurred on 29.01.09 i.e. about 6 months after the accident. It is also considered that in the financial year 200708, the income of petitioner was Rs. 1,47,296/ which ITR was filed on 20.03.09. The possibility that the petitioner had shown an exaggerated income in financial year 200809 (ITR filed on 30.07.09) cannot be ruled out. Hence, the income of petitioner in the financial MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 21 of 32 22 year 200708 is taken into consideration for calculating loss of income as per which the annual income of petitioner was Rs. 1,47,296/ and accordingly the monthly income of the petitioner thus comes to Rs. 12,274/ per month. Further, as per documents Ex. PW2/1 to Ex. PW2/2 which are the prescriptions slips, discharge summary, OPD card and medical bills which show that treatment of the petitioner/injured had continued upto the month of December, 2009 and she has not filed other document regarding her further treatment on record. Therefore, in the given facts and circumstances and on the basis of material as placed on record, the petitioner would be entitled for loss of income for 12 months and accordingly, she is granted an amount of Rs.1,47,288/ (Rs.12,274/ x12) towards loss of income for 12 months.
22. It would be pertinent to discuss that in the case of Rajesh & Others v. Rajbir Singh & Others 2013(6) SCALE 563, the deceased was around 33 years of age at the time of accident and was survived by his widow and minor children. He was MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 22 of 32 23 working as a clerk in a Government School. The claims Tribunal had awarded total compensation of Rs. 8,96,500/. On appeal, Hon'ble High Court had enhanced the total compensation to Rs. 10,17,000/. On further appeal to Hon'ble Apex Court, total compensation was further enhanced to Rs. 22,81,320/. Hon'ble Apex Court had observed that compensation under section 168 has to be "just, fair and equitable" to make good the loss suffered as a result of the wrong as far as money can do.
23. The Hon'ble Apex Court referred to case of Santosh Devi v. National Insurance Company Ltd. & Others 2012(4) SCALE 559 in which it was observed that even in absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed person. Relevant extract of the order is as follows: "18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verm's judgment, the Court had intended to lay MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 23 of 32 24 down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages.
Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
However, to make compensation just fair and equitable, Hon'ble Apex Court has also observed that:
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified 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 MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 24 of 32 25 income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter".
24. Accordingly, in the case in hand, in the given facts and circumstances and on the basis of material as placed on record, as such the petitioner is entitled to addition of 30% while computing the loss of future earnings on account of permanent disability. Thus, the amount of Rs.7,46,740/ (12,274+30%x12x13x30%) is granted towards loss of earning capacity of petitioner to her.
25. Attendant Charges In the case in hand, the petitioner has also examined MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 25 of 32 26 Sh. Prithvi Nath, (Administrator, Adarsh Nagar Sewa Sabha Parmarth Hospital) as PW4 who has not stated anything regarding the attendant charges given by the petitioner. During his cross examination, he has clearly stated that the attendants provided to the patient Kamlesh Aggarwal and Arjun Aggarwal were not his employees. As such, the petitioner has not examined any attendant who looked after her or any other person whom she engaged to attend her and has not adduced any evidence in this regard. However, it cannot be lost sight off that her family members must have attended her during her treatment and therefore, in the case in hand, a lump amount of Rs. 50,000/ is granted towards attendant charges to the petitioner.
26. Pain, Suffering, Conveyance and Special diet.
For this purpose, the nature of injuries, the parts of the body where the injuries were sustained, surgery if any under went by the victim, her confinement in the hospital and the duration of the treatment are to be considered. As per record, and as already discussed, the petitioner had suffered from 40% MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 26 of 32 27 permanent disability and she remained under treatment for a year and during this period, she was unable to look after herself. As such, the testimony of the petitioner to this effect has not been challenged in her crossexamination and nothing is shown on record to contrary and there is no reason to disbelieve his version.
In view of the nature of injuries sustained by the petitioner in the present case, an amount of Rs. 50,000/ is granted to her towards her pain and sufferings and further, an amount of Rs. 25,000/ is also granted to the petitioner towards her conveyance and special diet. The petitioner was about 46 years of age as on the date of accident in which one of her lower limb has permanently become disfunctional and hence, in the given fats and circumstances, an amount of Rs. 50,000/ towards loss of enjoyment of amenities of life is also granted to her. It also needs to be discussed that the petitioner has relied upon the documents Ex. PW2/1 to PW 2/2 which are the discharge summary, prescriptions slip, OPD card and medical bills and as per the same, she has also incurred medical expenses to the tune MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 27 of 32 28 of Rs.2,30,618/ which is not disputed by either of the respondents and there is no reason to disbelieve the same accordingly, the said amount be also given to the petitioner towards medical expenses as per rules.
27. The over all compensation is tabulated as below: Sl. No Compensation under various heads Amount awarded
1. Loss of income Rs. 1,47,288/ 2 Loss of future earning capacity Rs. 7,46,740/
3. Pain and sufferings Rs. 50,000/
4. Loss of enjoyment of amenities of life Rs. 50,000/
5. Conveyance and special diet Rs. 25,000/
6. Medical expenses Rs. 2,30,618/
7. Attendant charges Rs. 50,000/ Total Rs. 12,99,646/ Accordingly the over all compensation to be paid to the petitioner thus comes to Rs.12,99,646/
28. Issue no. 3Relief It needs to be discussed that ld. counsel for New India Assurance company/ R3 with whom the offending vehicle was insured had submitted that R3 is not liable to pay any MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 28 of 32 29 compensation amount because the driver of offending vehicle/R1 was not having the valid driving licence to drive the offending vehicle. In this regard, R3 has also examined two witness namely Sh. Basant Kr. Rastogi (Dy Manager, New India Assurance Co) as R3W1 and Sh. Anand Kumar Verma, (Assistant Accountant, RTO Office, Agra, UP) as R3W2.
29. Sh. Basant Kumar Rastogi (R3W1) has testified that on the instructions of R3, its advocate had issued the notices under Order 12 Rule 8 CPC to R1 and R2 through post for producing the driving licence of R1 which are proved on record as Ex R3W1/A and the postal receipts, vide which they were sent to R1 and R2 are proved as Ex. R3W1/B to Ex. R3W1/C. Further, the said insurance co./R3 has also examined Sh. Anand Kumar Verma, (Assistant Accountant, RTO office, Agra, UP) as R3W2 who has testified that driving licence no. 2108/AG/04 was issued to one Sh. Hori Lal which is not in the name of Vijay/R1 and has further testified that the said driving licence was issued in the year 2004 and not in the year 2003. He has further deposed that the driving licence which is Ex. MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 29 of 32 30 R3W1/d was not issued by the said office.
It is pertinent to mention here that R1 and R2 have not cross examined any of the said witnesses on any aspect and they have accordingly not disputed the testimony of any of these witnesses. Accordingly, in the given facts and circumstance, there is nothing on record to falsify the testimonies of these witnesses and it is rather shown on record in the given facts and circumstances that as such, R1 did not possess a valid driving license of the offending vehicle at the relevant time.
30. It is not out of place to discuss here that in the case of Prem Kumari & Ors. Vs Prahlad Devi & Ors. II (2008) 477 (SC), the Hon'ble Apex Court has laid down that even if the license of driver is fake, still the insurer would continue to remain liable to pay the compensation to the petitioner and the insurer is entitled to recover the said amount from the owner and the driver of offending vehicle as per rules.
31. In the present case, though, it is shown on record that Sh. Vijay/R1 was not having a valid driving licence to drive the offending vehicle on the date of accident at the relevant time, MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 30 of 32 31 yet, the New India Assurance Company Ltd./R3 is under statutory obligation to pay compensation amount to the petitioner/claimant and it can very well recover the said amount from driver Sh. Vijay/R1 and owner Sumit Mishra/R2 as per rules as per procedure established by law.
32. Accordingly, in the case in hand, The New India Assurance co. Ltd./R3 is directed to deposit with this Tribunal within 30 days from today the awarded amount of Rs.12,99,646/ alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposit of award amount to be given by Insurance co/R3 to the petitioner and his counsel and recover the same from R1 and R2.
33. I have heard the petitioner regarding her financial needs. In view of the submissions made and further in view of observations made in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, following arrangements is hereby ordered: An amount of Rs.6,00,000/ be released to petitioner in cash as per rules and the remaining amount with interest be kept in MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 31 of 32 32 FDR in her name for a period of 3 years in any nationalised bank as per rules.
34. It is further directed that interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Accounts of the petitioner as per rules.
Further, the petitioner shall not have any facility of loan or advance on the FDR, however, in case of emergent needs, she may approach this Tribunal for premature encashment of FDR's as per rules.
35. The Petition is accordingly disposed of. File be consigned to record room as per rules after compliance of necessary legal formalities as per rules.
(Barkha Gupta) Announced in the open Court Judge MACT/NW District today i.e.06.01. 2016 Rohini Courts, Delhi MACT No.692/09 Smt. Kamlesh Aggarwal Vs. Vijay 32 of 32