Delhi District Court
Sector - 7 vs M/S New India Assurance Company Ltd on 4 June, 2014
IN THE COURT OF Ms. GEETANJLI GOEL
PO: MOTOR ACCIDENT CLAIMS TRIBUNAL 2
NEW DELHI
SUIT NO.101/14
DATE OF INSTITUTION: 20.8.2008
IN THE MATTER OF:
Shri Bansi Lal
s/o Shri Rajan Singh
R/o 413, Ward No./Sector No.1
Abadh Bandh Colony
Nangli Road, Sohna
Haryana
Also at:
Sector - 7, R.K. Puram
New Delhi ......... Petitioner.
Versus
1.M/s New India Assurance Company Ltd.
Jeewan Bharti Building
5th Floor, Tower II
Connaught Place
New Delhi 110001
2. Mr. Ravinder Kumar Gupta
S/o Shri Ram Pal
R/o Gali No.3
MB116, Shakarpur
New Delhi
Suit No. 101/14 Page No. 1 of 29
Bansi Lal Vs. M/s New India Assurance Co. Ltd.
3. Shri Yatinder Singh
R/o Darwah
PS Danahar
District Mainpuri
UP .........Respondents
Final Arguments heard : 21.5.2014 Award reserved for : 04.6.2014 Date of Award : 04.6.2014 AWARD
1. Vide this judgment cum award I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 31.10.2007 at about 10 p.m. he was going on DL1M0787 Eicher Canter from R.K. Puram to Sohna, Haryana and when the container reached near Village Bhondisi the driver was driving at high speed, rashly and negligently and in contravention of the traffic rules and hit the tractor at very great force. Due to the forceful impact and the high speed the petitioner received grievous injuries all over his body and compound fractures in right leg and he was removed to Sohna Government Hospital, thereafter he was removed to Base Hospital in Delhi Cantt and his treatment was still continuing. It is stated that FIR No.420/07 under Sections 279/337 IPC was registered at PS Sohna in respect of the accident. It is averred that the accident occurred solely due to the rash and Suit No. 101/14 Page No. 2 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
negligent act of the respondent No.3, hence he was liable to pay compensation. The respondent No.2 is the owner and he is liable to pay the compensation being the owner of the offending vehicle and the respondent No.1 is also liable to pay the compensation being the insurer of the offending vehicle.
3. It is stated that the petitioner is 22 years of age and working as Sepoy in 27 BN Rajput and earning Rs.10,000/ p.m. It is averred that the petitioner had incurred Rs.50,000/ on the treatment till date and the treatment was still continuing and more expenses were to be incurred in the future. It is averred that due to the accident the petitioner/ injured and his family members suffered from pain and economic loss also. It is prayed that Rs.20,00,000/ (Rs.Twenty lacs only) be awarded as compensation in favour of the petitioner and against the respondents on account of the accident caused due to the sole negligence of the respondent No.3.
4. Written statement was filed on behalf of the respondent No.1 taking the preliminary objections that in case the driver of the alleged offending vehicle was not holding a valid and effective driving license at the time of the accident the respondent No.1 would not be liable to pay any compensation, nor if it is proved that the accident had occurred due to the petitioner's own fault. It is averred that if it was proved that the accident had occurred due to the contributory negligence of both the vehicles involved, the liability of the respondent No.1 would be reduced accordingly. It is averred that the petition is bad for nonjoinder of necessary parties since the driver, insured and insurer of the tractor involved in the accident had not been made Suit No. 101/14 Page No. 3 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
parties to the petition. The averments made in the claim petition were denied. It is not denied that the alleged offending vehicle No.DL1M0787 was insured in the name of Ravinder Kumar with the respondent No.1 vide its policy No.311101/31/07/01/00000999 valid from 13.9.2007 to 12.9.2008. It is averred that the amount claimed is excessive and arbitrary.
5. Separate written statement was filed on behalf of the respondents No.2 and 3 taking the preliminary objections that the petition is false, frivolous, vexatious, misconceived and based on incorrect facts. It is averred that the respondent No.3 was driving the vehicle at a very normal speed by following the traffic rules and when the vehicle was stopped the Mandir of the petitioner which was kept in the front side of the vehicle at the insistence of the petitioner, came inside by breaking the front glass, due to which the accident occurred, therefore, there was no fault on the part of the respondents No.2 and 3. It is averred that the petition is without any cause of action and the petitioner has not come to the court with clean hands and has suppressed the material facts from the court. It is averred that the compensation claimed by the petitioner is highly exorbitant and excessive. It is averred that since the vehicle in question was insured with the respondent No.1 at the time of the accident, hence the respondents No.2 and 3 are not liable to pay any compensation to the petitioner and the compensation, if any, awarded by the court would be the sole liability of the respondent No.1. The averments made in the claim petition were denied. It is averred that there was no fault on the part of the respondents No.2 and 3. It is averred that the petitioner sustained grievous injuries, compound fracture in his right leg and other injuries all over the body as alleged. It is denied that the petitioner spent Rs.50,000/ on his treatment and was still under Suit No. 101/14 Page No. 4 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
treatment as alleged.
6. Vide order dated 20.01.2009 of my learned predecessor, from the pleadings of the parties the following issues were framed:
1.Whether the petitioner sustained injuries in the road accident on 31.10.2007 at about 10.00 p.m. by the vehicle No.DL1M0787 which was being driven by the respondent No.3 in rash and negligent manner and was owned by respondent No.2 and was insured with respondent No.1? OPP.
2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? OPP.
3. Relief.
The respondents No.2 and 3 were proceeded exparte vide order dated 5.12.2011 of my learned predecessor. Vide order dated 12.2.2013 of my learned predecessor it was directed that the petitioner shall not be entitled to interest on the award, if any passed in favour of the petitioner from 5.12.2011 till the date of the award.
7. In support of his claim the petitioner appeared as PW1 and deposed that on 31.10.2007, at about 10.00 p.m. he was going on vehicle number mentioned in the petition DL1M0787 from R.K. Puram to Sohna, Haryana and of a tractor, when the vehicle reached near Bhondsi, it hit the rear from the front. He stated that the driver was rash and negligent and PW1 suffered injuries all over his body. He was taken to Sohna Hospital and then to Base Hospital in Delhi. Injuries are mentioned in the Suit No. 101/14 Page No. 5 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
medical report Ex.PW1/A. He stated that he was working as Sipahi in Army and remained on leave. Case summary report is Ex.PW1/A and his salary certificate is Ex.PW1/B.
8. PW2 Naib Subedar Virender Singh, Base Hospital, Delhi Cantt had brought the medical documents in respect of the petitioner which are Ex.PW2/1, Ex.PW2/2 and Ex.PW2/3 respectively. He was not crossexamined on behalf of the respondents.
9. PW3 Constable Ajay Kumar Singh, 27 Rajput, Calcutta deposed that he had been authorized by Adjt. 27 Rajput to depose in the court and he had brought the documents of Sipahi Bansi Lal No.3008975Y. Certified copy of permanent category is Ex.PW3/1, certificate of the promotion letter is Ex.PW3/2 and certificate of permanent physical handicap is Ex.PW3/3. He stated that in future Sipahi Bansi Lal would have got the post of Subedar/ Major, Hony. Captain but he would not get the said posts. PE was closed on 21.5.2010.
10. On behalf of the respondent No.1 Shri G.N. Manjhi, Assistant appeared as R1W1 and he proved the certified true copy of policy No.311101/31/07/01/00000999 valid from 13.9.2007 to 12.9.2007 (ought to be 2008) in the name of Mr. Ravinder Kumar, insuring vehicle No.DL1M0787 (Eicher Canter) which is Ex.R1W1/A. He stated that it is a commercial policy for goods carrying vehicle and under the said policy no passenger or person was insured except the driver and cleaner. He stated that no premium was paid for any passenger under the said policy. A legal notice Suit No. 101/14 Page No. 6 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
under section (ought to be order) 12 rule 8 CPC was sent by their Advocate Ms. Lalita Bajaj to Mr. Ravinder Kumar, insured respondent No.2, to produce the original policy along with RC book of vehicle No.DL1M0787 and DL of the driver Yatender Singh, permit and other related documents of the case. The legal notice is Ex.R1W1/B, postal receipt by registered mail is Ex.R1W1/C and by UPC is Ex.R1W1/D. He stated that as per the policy the petitioner was a passenger in the vehicle, therefore the insurance company was not liable. He was not cross examined on behalf of the petitioner and the respondents No.2 and 3 were exparte. RE was closed on 5.12.2011.
11. I have heard the learned counsel for the petitioner and the respondent No.1 and perused the record. The petitioner was also examined on 21.5.2014 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.
12. My findings on the specific issues are as under:
Issue No.1
13. 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 rash and negligent driving by respondent No.3, the driver of the offending vehicle No.DL1M 0787. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Suit No. 101/14 Page No. 7 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
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 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 Suit No. 101/14 Page No. 8 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
14. The case of the petitioner is that on 31.10.2007 at about 10 p.m. he was going on DL1M0787 Eicher Canter from R.K. Puram to Sohna, Haryana and when the container reached near Village Bhondsi the driver was driving at high speed, rashly and negligently and in contravention of the traffic rules and hit the tractor at very great force. Due to the forceful impact and the high speed the petitioner received grievous injuries all over his body and compound fractures in right leg and he was removed to Sohna Government Hospital, thereafter he was removed to Base Hospital in Delhi Cantt and his treatment was still continuing. It is stated that FIR No.420/07 under Sections 279/337 IPC was registered at PS Sohna in respect of the accident. PW1 had also deposed to that effect.
15. The petitioner has placed on record certified copies of the criminal record consisting of copy of the charge served in the criminal case on the respondent No.3 vide order dated 18.3.2009 of the learned JMIC for the offence under Sections 279/337 IPC and copy of site plan and uncertified copy of MLC and copy of FIR. As per the FIR No.420/07 under Sections 279/337 IPC PS Sohna, Gurgaon the case was registered on the basis of complaint of Badruddin who was the driver of the tractor against which the respondent No.1 had allegedly hit the canter wherein he had stated the manner in which the accident had taken place. As per the charge respondent No.3 has been charged for the offence under sections 279/337 IPC. Suit No. 101/14 Page No. 9 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
16. The respondents No.2 and 3 had filed the written statement averring that the respondent No.3 was driving the vehicle at a very normal speed by following the traffic rules and when the vehicle was stopped the Mandir of the petitioner which was kept in the front side of the vehicle at the insistence of the petitioner, came inside by breaking the front glass, due to which the accident occurred, therefore, there was no fault on the part of the respondents No.2 and 3. During cross examination by the learned counsel for the respondent No.1 PW1 stated that he had hired the canter to shift household luggage. During crossexamination by learned counsel for the respondents No.2 and 3 PW1 admitted that he was carrying a mandir of stone on the roof of the canter but that was not the cause of the accident. He stated that the accident was caused due to the hit on the tractor. He denied that the mandir fell and broke the glass and injured him or that he had not suffered any injuries.
17. PW1 had thus reiterated during crossexamination that the accident was caused due to the hit on the tractor and even in the FIR it was stated that the canter had hit the tractor trolley. PW1 had admitted that he was carrying a mandir of stone on the roof of the canter but he stated that was not the cause of the accident and he denied that the mandir fell and broke the glass and injured him. In the written statement the plea taken by the respondents No.2 and 3 was that when the vehicle was stopped the mandir of the petitioner which was kept in the front side of the vehicle at the insistence of the petitioner, came inside by breaking the front glass, due to which the accident occurred. Even if for sake of arguments the said plea was to be accepted it is pertinent that the respondent No.3 was the driver of the canter and the question of the petitioner insisting that the mandir be kept at a particular Suit No. 101/14 Page No. 10 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
place did not arise and it was for the driver to exercise due care and caution and not allow the mandir to be kept at a place from where it could have fallen due to the vehicle being stopped and coming inside by breaking the glass. Even otherwise there is nothing to show the same and PW1 had stated about the canter hitting the tractor and the same was also recorded in the FIR. The respondents No.2 and 3 who are owner and the driver of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioner or to substantiate their version of the incident. Further the criminal record has been placed on record which shows that respondent No.3 has already been charged for the offence under Sections 279/337 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL1M0787. The fact that the charge sheet is filed against the respondent No.3 and respondent No.3 is facing criminal trial is also not disputed. In view of the documents on record which have remained unrebutted, the negligence of respondent No.3 has been prima facie proved.
18. PW1 had filed copy of the MLC and the medical record which show that the petitioner had sustained injuries in the alleged accident. Accordingly issue No.1 is decided in favour of the petitioner and against the respondents. Suit No. 101/14 Page No. 11 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
Issue No.2
19. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation. 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
20. The case of the petitioner is that due to the accident on 31.10.2007 he received grievous injuries all over his body and compound fracture in right leg and he was removed to Sohna Government Hospital and thereafter he was removed to Base Hospital, Delhi Cantt. The petitioner has placed on record copy of the MLC which shows CLW on leg and minor abrasions all over both the lower limbs. He has also placed on record Ex.PW1/A which is the opinion dated 20.5.2009 as per which the petitioner was a case of infected non union fracture tibia and fibula lower 1/3 (OPTD) right. PW2 had placed on record the medical documents Ex.PW2/1, 2 and 3 which show that the petitioner was a case of infected nonunion fracture tibia and fibula (R ) leg. As per the said documents the petitioner was admitted to hospital on 14.1.2008 and discharged on 3.6.2008 (after having remained in hospital for 139 Suit No. 101/14 Page No. 12 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
days), he was again admitted on 14.7.2008 and discharged on 10.10.2008 (having remained in hospital for 86 days) and he was again admitted on 21.11.2008 and discharged on 23.12.2008. The documents show that the treatment continued even thereafter.
21. PW3 proved the certified copy of the permanent category which is Ex.PW3/1 and certificate of permanent physically handicapped which is Ex.PW3/3 which show that he was placed in low medical category and in permanent low medical category. Thus the petitioner had suffered grievous injuries and also disability. However no medical bills have been placed on record and he was treated at Base Hospital being in the Army. It was stated in the claim petition that the petitioner had incurred an expenditure of Rs.50,000/ on treatment till date and the treatment was still continuing. However no bill has been placed on record. Though the petitioner was in the Army he would have incurred some expenditure towards medicines and medical treatment. As such an amount of Rs.20,000/ (Rs.Twenty Thousand only) is awarded towards medicines and medical treatment.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
22. 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 Suit No. 101/14 Page No. 13 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the accident on 31.10.2007 he received grievous injuries all over his body and compound fracture in right leg and he was removed to Sohna Government Hospital and thereafter he was removed to Base Hospital, Delhi Cantt. The petitioner has placed on record copy of the MLC which shows CLW on leg and minor abrasions all over both the lower limbs. He has also placed on record Ex.PW1/A which is the opinion dated 20.5.2009 as per which the petitioner was a case of infected non union fracture tibia and fibula lower 1/3 (OPTD) right. PW2 had placed on record the medical documents Ex.PW2/1, 2 and 3 which show that the petitioner was a case of infected nonunion fracture tibia and fibula (R ) leg. As per the said documents the petitioner was admitted to hospital on 14.1.2008 and discharged on 3.6.2008 (after having remained in hospital for 139 days), he was again admitted on 14.7.2008 and discharged on 10.10.2008 (having remained in hospital for 86 days) and he was again admitted on 21.11.2008 and discharged on 23.12.2008. The documents show that the treatment continued even thereafter.
23. PW3 proved the certified copy of the permanent category which is Ex.PW3/1 and certificate of permanent physically handicapped which is Ex.PW3/3 which show Suit No. 101/14 Page No. 14 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
that he was placed in low medical category and in permanent low medical category. Thus the petitioner had suffered grievous injuries and also disability. Looking at the nature of injuries, period of hospitalization, extent of treatment and disability suffered by the petitioner and that the accident pertains to the year 2007, the petitioner is awarded Rs.75,000/ (Rs.Seventy Five Thousand only) for pain and suffering.
24. It was stated that the petitioner was around 22 years of age at the time of filing the claim petition. When he was examined by the Tribunal he had stated his age to be 2627 years. As per the documents produced by PW3 the date of birth of the petitioner is 30.08.1986. As such he would have been more than 21 years on the date of the accident i.e. 31.10.2007. Notice can be taken of the fact that on account of 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 disability 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 cannot however be held to be entitled to any amount towards loss of expectation of life though he would be entitled to an amount of Rs.25,000/ towards disfiguration. CONVEYANCE AND SPECIAL DIET
25. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance nor stated the amount specifically incurred on Suit No. 101/14 Page No. 15 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
conveyance and he was in the Army however, notice can be taken of the fact that after the accident the petitioner was taken to Sohna Government Hospital and thereafter he was taken to Base Hospital, Delhi Cantt. and that after discharge from hospitals he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.10,000/ (Rs. Ten Thousand only) would be just and proper towards conveyance charges.
26. The petitioner has also not stated specifically the amount incurred on special diet. 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. The petitioner has also 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 attendant charges and a sum of Rs.30,000/ (for fifteen months considering the period of hospitalization and that treatment continued thereafter) is awarded towards attendant charges. LOSS OF INCOME
28. It was stated by the petitioner that he was working as a sipahi in Army and earning Rs.10,000/ p.m. and he remained on leave. It was stated that due to the Suit No. 101/14 Page No. 16 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
accident the petitioner and his family members suffered from pain and economic loss also. His salary certificate is Ex.PW1/B. PW3 had proved the certified copy of permanent category which is Ex.PW3/1, certificate of promotion letter which is Ex.PW3/2 and certificate of permanent physically handicap which is Ex.PW3/3. He stated that in future Sipahi Bansi Lal would have got the post of Subedar/ Major, Hony Captain but now he would not get the said posts. He was not crossexamined on behalf of the respondents No.2 and 3 and during crossexamination by the learned counsel for the respondent No.1 PW3 admitted that Subashish Pandey Surgeon Commander who signed the document was alive. However there is nothing to dispute the said documents. The said documents show that the petitioner was placed in low medical category and in permanent low medical category. Thus the petitioner had suffered grievous injuries and also disability.
29. As per Ex.PW3/2 which is dated 25.7.2009 the medical authorities had downgraded the medical categorization of the petitioner to S1H1A (Permanent) P1E1. It is further mentioned that the individual is in low medical category due to his injuries, hence he is not entitled for further promotions. It is also stated therein that in normal course a Sepoy gets his promotions upto the rank of Sub Maj (Hony Capt) if he is in acceptable medical category, qualifies the requisite promotion exams and gets selected in DPC and in case the individual does not get promoted due to his low medical categorization or various other reasons, the individual will still serve the organization for a minimum of 17 years of service provided being retained by the Army. Thus Ex.PW3/2 itself mentions that in normal course a Sepoy gets his promotions upto the rank of Sub Maj (Hony Capt) but clearly the same is not Suit No. 101/14 Page No. 17 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
automatic and apart from an individual being in acceptable medical category it is also essential that he should qualify the requisite promotion exams and he should get selected in DPC. It is further stated in Ex.PW3/2 that in case the individual does not get promoted due to his low medical categorization or various other reasons, the individual will still serve the organization for a minimum of 17 years of service provided being retained by the Army. The petitioner had tried to contend that he was soon going to be thrown out of the Army but nothing has been placed on record to show that and he has continued in service since his accident on 30.10.2007 till the present. Normally a person remains in service till the age of 49 years and if the petitioner is retained for 17 years of service as stated by Ex.PW3/2 i.e. till the age of 38 years he would lose about 11 years of service. Further he would get pension after retirement and though no evidence has been brought on record to show what could be the pension payable to the petitioner when he would stand retired, he would get at least 50% of his pay as pension. Thus the loss to the petitioner would be 50% of the salary for a period of 11 years. It may be mentioned that in the judgment of the Hon'ble Supreme Court in Sarla Verma v. DTC (2009) 6 SCC 121 the multipliers that have to be applied as per age have been laid down. However the case of the petitioner stands on a different footing as he would remain in service though not for the entire period for which he would have remained in service but for the accident.
30. It would be argued on behalf of the petitioner that he would also lose out on the prospect of future employment after his retirement from the service but that would be too far removed and it is not necessary that the petitioner would Suit No. 101/14 Page No. 18 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
necessarily have taken up further employment.
31. The petitioner has placed on record the salary certificate Ex.PW1/B which shows the basic pay in September, 2007 as Rs.6250/, DA as Rs.743/, PMHA as Rs.30/, LRA as Rs.214/ and Grade Pay as Rs.2000/. Thus his total income was Rs.9237/. Taking 50% of the same the loss to the petitioner would be Rs.4620/ p.m. approximately. The petitioner would also be entitled to addition of 50% towards inflation, as such the monthly loss of income would work out to Rs.4620/ + Rs.2310/ = Rs.6930/. Thus the total loss of income comes to Rs.6930/ X 12 (annual) X 11 = Rs.9,14,760/ (rounded off to Rs.9,15,000/).
32. As per the documents the petitioner had remained admitted in hospital for various periods and the treatment was continuing even thereafter. However no evidence has been brought on record to show that the petitioner had suffered any loss of income for the period he remained hospitalized and there is merit in the submission of the learned counsel for the respondent No.1 that the petitioner has continued to remain in service after the accident and he has been paid his salary for the entire period. Even during examination by the Tribunal the petitioner had stated that at present he was working as sipahi and earning Rs.20,000/ approximately. Thus the petitioner has not suffered any loss of income during the period of hospitalization.
As such the total amount under this head comes to Rs.9,15,000/. Suit No. 101/14 Page No. 19 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.20,000/ Pain and suffering Rs.75,000/ Loss of Amenities of life Rs.50,000/ Disfiguration Rs.25,000/ Conveyance Rs.10,000/ Special Diet Rs.10,000/ Attendant charges Rs.30,000/ Loss of Income Rs.9,15,000/ TOTAL Rs.11,35,000/ RELIEF
33. The petitioner is awarded a sum of Rs.11,35,000/ (Rs.Eleven Lacs Thirty Five Thousand only) alongwith interest @ 7.5% per annum in view of the decision in Rajesh and others v. Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of the petition till 5.12.2011 (by order dated 12.2.2013 of my learned predecessor it was directed that the petitioner shall not be entitled to interest on the award, if any passed in favour of the petitioner from 5.12.2011 till the date of award) and from 4.6.2014 till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The insurer/respondent No.1 shall deposit the award amount directly in the bank account of the petitioner claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
Suit No. 101/14 Page No. 20 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
34. 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 disbursed as follows:
a) 10% of the share of the petitioner be released to him by transferring it into his savings account and remaining amount out of his share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
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.
9. Fixed deposit in respect of 10% for a period of nine years.
b)The respondent No.1 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 Bansi Lal within 30 days of the passing of the award.
Suit No. 101/14 Page No. 21 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondent No.1 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 to the petitioner.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts 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.
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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.
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.
35. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
Suit No. 101/14 Page No. 23 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
APPORTIONMENT OF LIABILITY
36. The respondent No.1 is the insurer, the respondent No.2 is the owner and the respondent No.3 is the driver of the offending vehicle. It is the case of the respondent No.1 that the petitioner was a gratuitous passenger since the vehicle in question was a goods carriage vehicle and no passenger could travel in the same and as such the respondent No.1 was not liable to pay any compensation to the petitioner. It is not in dispute that the vehicle in question was a goods carriage vehicle and the petitioner himself had stated that it was Eicher Canter. The insurance policy also shows that the insurance was taken in respect of Goods Carrying Public Carrier. The respondent No.1 in support of its case had produced R1W1 in the witness box who had proved the insurance policy Ex.R1W1/A. He stated that it is a commercial policy for goods carrying vehicle and under the said policy no passenger or person was insured except the driver and cleaner. He stated that no premium was paid for any passenger under the said policy. A legal notice under section (ought to be order) 12 rule 8 CPC was sent by their Advocate Ms. Lalita Bajaj to Mr. Ravinder Kumar, insured respondent No.2, to produce the original policy along with RC book of vehicle No.DL1M0787 and DL of the driver Yatender Singh, permit and other related documents of the case. The legal notice is Ex.R1W1/B, postal receipt by registered mail is Ex.R1W1/C and by UPC is Ex.R1W1/D. He stated that as per the policy the petitioner was a passenger in the vehicle, therefore the insurance company was not liable. He was not crossexamined on behalf of the petitioner and the respondents No.2 and 3 were exparte.
Suit No. 101/14 Page No. 24 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
37. The respondents No.2 and 3 had not appeared to rebut what had been stated by R1W1 about the petitioner being a gratuitous passenger and he was also not crossexamined on behalf of the petitioner. During crossexamination by learned counsel for the respondent No.1 PW1 had stated that he had hired the canter to shift household luggage. He stated that his father had arranged the canter and he was only accompanying the luggage. He stated that the money paid to the canter was arranged by his father. He had no documents in support of hiring it. Thus the petitioner had no documents to show that he had hired the vehicle in question but he had also stated that he had hired the canter to shift household luggage and there is nothing to show the contrary. He had also stated that he was only accompanying the luggage. It was sought to be contended by the learned counsel for the respondent No.1 that in fact there were no goods and only a mandir was being carried but no suggestion was put to PW1 that other than the mandir no other goods were being carried.
38. Section 147 of the Act in so far as is material lays down:
"147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which:
(a) is issued by a person who is an authorized insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any Suit No. 101/14 Page No. 25 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) xxxx" (emphasis supplied) By amendment in 1994 the words 'including owner of the goods or his authorized representative carried in the vehicle' were added and thus the insurance policy has to insure the owner of the goods or his authorized representative carried in the vehicle.
In National Insurance Co. Ltd. v. Baljit Kaur and others (2004) 2 SCC 1 upon considering the effect of amendment carried out in Section 147 of the Act by Motor Vehicles (Amendment) Act, 1994, it was held:
"By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorized representative carried in the vehicle." The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorized representative carried in the vehicle besides the third parties."
39. It has been held in National Insurance Company Ltd. v Bommithi Subbhayamma and Others, 2005 ACJ 721 by Hon'ble Supreme Court that:
"6. In Asha Rani, 2003 ACJ 1 (SC), this Court while overruling Satpal Singh, 2000 ACJ 1(SC), has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger traveling in a goods vehicle".Suit No. 101/14 Page No. 26 of 29
Bansi Lal Vs. M/s New India Assurance Co. Ltd.
40. In Sanjeev Kumar Samrat v National Insurance Company Ltd., Civil Appeal No. 8925 of 2012 it has been held by Hon'ble Supreme Court that:
"13. The correctness of the said decision came up for consideration before a threeJudge Bench in New India Assurance Co. Ltd. v Asha Rani and Others. The learned Chief Justice, speaking for himself and H. K. Sema, J. took note of Section 147 (1) prior to the amendment and the amended provision and the objects and reasons behind the said provision and came to hold as follows: "The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorized representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression "including owner of the goods or his authorised representative carried in the vehicle" which was added to the preexisting expression "injury to any person" is either clarificatory or amplification of the preexisting statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either Suit No. 101/14 Page No. 27 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
dies or suffers bodily injury."
In the instant case the petitioner was the owner of the goods carried in the vehicle or at least the authorized representative if the goods are taken to be owned by his father and as such he cannot be regarded as a gratuitous passenger. Thus the respondent No.1 would be liable to pay compensation to the petitioner as the insurance policy has to cover the owner of the goods or his authorized representative carried in the vehicle. The respondent No.1 had admitted that the vehicle bearing registration No.DL1M0787 was insured in the name of Ravinder Kumar with the respondent No.1 vide its policy No.311101/31/07/01/00000999 valid from 13.9.2007 to 12.9.2008. Thus being the insurer, the respondent No.1 would be liable to pay the compensation on behalf of the respondents No.2 and 3. Accordingly the respondent No.1 is directed to deposit the award amount along with interest (as directed in para 33 of the judgment/ award) within 30 days of the award failing which it would be liable to pay interest at the rate of 12% p.a.
41. 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.1 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 09.09.2014.
An attested copy of the award be given to the parties (free of cost) and a copy be Suit No. 101/14 Page No. 28 of 29 Bansi Lal Vs. M/s New India Assurance Co. Ltd.
also sent to the Nodal Officer, UCO Bank, Patiala House.
File be consigned to record room.
Announced in open court
on this 4th day of June, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 101/14 Page No. 29 of 29
Bansi Lal Vs. M/s New India Assurance Co. Ltd.