Delhi District Court
Niraj Jain vs Sunil And Ors on 9 November, 2023
IN THE COURT OF MS. MAYURI SINGH
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
MACP No. 95/17
Mamta Jain & Ors. Vs. Sunil & Ors.
In the matter of :
Mamta Jain (Injured)
W/o Late Sh. Bobby Jain
R/o- C-2/184B, Block-C-II
New Ashok Nagar, Delhi ......... Petitioner
Versus
1. Sunil (Driver)
S/o Sh. Hansraj,
C/o- Kusum Lata W/o- Balkishan
R/o- 526A, Pan Danvir
Village Bawana, Delhi
2nd Address
Chaudhary Mahesh, Landlord
Top Floor, 54A, Kotla Village
Near Mayur Vihar Phase-I, Delhi-110091
2. Reliance General Insurance Co. Ltd.
Aditya Tower, 2nd Floor
Plot No.5, Laxmi Nagar, Dist. Center
Vikas Marg, New Delhi-110092
3. Ms. Shagufta
W/o- Md. Iqbal
R/o- 35/261, Trilok Puri
Delhi-110091 ......... Respondents
AND MACP No. 96/2017 MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 1 of 371.Mamta Jain W/o Late Sh. Bobby Jain
2.Hritik Jain S/o-Late Sh. Bobby Jain
3. Himanshu Jain S/o-Late Sh. Bobby Jain
4. Raj Kumari W/o- Sh. Raju
5. Raju S/o- Late Sh. Mohan Lal All R/o- C-2/184B, Block-C-II New Ashok Nagar, Delhi ......... Petitioners Versus
1. Sunil
2. Reliance General Insurance Ltd.
3. Ms. Shagufta (Details as above-mentioned) ........Respondents AND MACP No. 97/2017
1. Niraj Jain S/o- Sh. Rajvir Singh,
2. Sunaina D/o- Sh. Niraj Jain
3. Naina Kumari, D/o- Sh. Niraj Jain
4. Tannu D/o- Sh. Niraj Jain
5. Abhishek S/o- Sh. Niraj Jain All R/o- C-2/117A, Near MCD Primary School, New Ashok Nagar, Delhi-110096 .....Petitioners Versus MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 2 of 371. Sunil
2. Reliance General Insurance Ltd.
3. Ms. Shagufta (Details as above-mentioned) ......... Respondents AND MACP No. 98/2017 Niraj Jain (Injured) ....Petitioner Versus
1. Sunil
2. Reliance General Insurance Ltd.
3. Ms. Shagufta (Details as above-mentioned) ......... Respondents Date of Institution : 09.06.2017 Date of arguments : 20.07.2023 & 09.11.2023.
Date of Judgment : 09.11.2023
AWAR D
1. By this common award, all the four claim petitions, arising out of same accident, filed under section 166/140 of the Motor Vehicles Act, 1988, would be decided. It is relevant here to mention that DAR was filed by IO in this matter for all four injured separately and cases were consolidated as well for the purpose of inquiry. However, thereafter, separate claim petitions were also filed by the petitioners.
2. Important facts of the case are as under:
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors. MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.Page 3 of 37
On 15.04.2017 at about 08:00 am, Petitioner alongwith her husband Bobby Jain (now deceased), Niraj Jain, Poonam (now deceased), Sunil and others were going in Car No. DL-1CT-2392 from Delhi to Aligarh. The car was being driven by Sunil at a very high speed and most rashly and negligently. Petitioner and other occupants of the car asked the driver to drive the vehicle slowly and carefully, but he did not listen to them and continued to drive at a high speed. When the car reached Somna Mor, Bhupal Nagaria Village, then the car hit against Neelgai (Boselaphus tragocamelus), due to high speed, the driver lost balance and car overturned and fell into the ditch, as a result of which all the occupants of the car received serious injuries. Occupants Bobby Jain and Poonam died due to serious injuries received in the accident in Safdargunj Hospital. Petitioners Mamta Jain and Neeraj Jain sustained multiple injuries.
3. On notice of the petition, all the respondents put in their appearance.
4. Respondent No. 2 apprised the Court that she was not registered owner on the date of the accident and vehicle was already transferred in the name of a lady namely Sagufta/R4. On application under Order I Rule 10 CPC, R2 was deleted from the array of respondents vide order dt. 27.07.2019 and further R4/Sagufta was issued notice and impleaded as a respondent No. 4. R4 failed to appear before the Tribunal despite service and did not file written statement and was proceeded ex-parte on 25.10.2019. Opportunity of R1 to file written statement was closed on 30.01.2021.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 4 of 374 (a) Written statement was filed on behalf of respondent no. 2/ Insurer. In the written statement, it is stated by Reliance GIC Ltd. that the offending vehicle was going from Delhi to Aligarh and injured were gratuitous passengers. The case is bad for misjoinder and non-joinder of proper parties. The offending vehicle has been planted. No FIR and charge-sheet was filed against driver of offending vehicle and no other vehicle was involved in the accident. There is no cause of action for filing the claim petition. Without admitting the factum of accident, it is stated that accident if any, was caused solely due to sudden crossing of road by Neelgai and General Diary entry dt. 15.04.2017 shows that the offending vehicle was going from Delhi to Aligarh and injured was a gratuitous passenger. The involvement of offending vehicle is denied and alternatively, it is submitted that accident was caused due to sudden crossing of road by Neelgai and hence, there was no negligence on the part of driver of the vehicle. The driver did not have a valid driving license, effective RC and insurance policy and was using the vehicle for hire and reward and hence, insurance company is not liable to pay any compensation. The vehicle was insured in the name of deleted R2 namely Kusum Lata from 14.06.2016 to 13.06.2017.
5. At the outset, it is relevant to mention that during pendency of the present proceedings, petitioner no. 4 in MACP No. 96/2017 namely Raj Kumari, w/o - Sh. Raju was reported to have expired and on application moved by the petitioner, her LRs namely, Neeraj Jain, Pappu Kumar and Beena Jain were impleaded as respondent no. 4.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 5 of 376. On the basis of pleadings, following issues were framed on 09.02.2021:-
MACP No. 95/17(i). Whether the petitioner/ Smt. Mamta Jain suffered injuries in a motor vehicular accident on 15.04.2017 at 08:00 am on road, at Somna More, near Bhupal Nagaria Village, District Aligarh, U.P., within the jurisdiction of PS Gabhana, due to rash and negligent driving of offending vehicle bearing registration no. DL1CT-2392 (car) by respondent no. 1/ Sunil? (OPP)
(ii) Whether the petitioner is entitled to compensation on account of said injuries and if yes, to what extent and from whom? (OPP)
(iii) Whether the petitioner is entitled to interest on the award amount, if so, at what rate and for which period? (OPP)
(iv) Relief?MACP No. 96/17
(i). Whether husband of petitioner No.1, father of Petitioner Nos. 2 & 3 and son of Petitioner Nos. 4 & 5, namely Bobby Jain, died in a motor vehicular accident on 15.04.2017 at 08:00 am on road, at Somna More, near Bhupal Nagaria Village, District Aligarh, U.P., within the jurisdiction of PS Gabhana, due to rash and negligent driving of offending vehicle bearing registration no. DL1CT-2392 (car) by respondent no. 1/ Sunil? (OPP)
(ii) Whether the petitioners are entitled to the compensation as prayed for, if so, to what amount and from whom? (OPP) Issues No. (iii) to (v) : same as in lead /main case MACP No. 95/17.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 6 of 37 MACP No. 97/17(I) Whether wife of petitioner No.1, and mother of Petitioner Nos. 2 to 4, namely Poonam died in a motor vehicular accident on 15.04.2017 at 08:00 am on road, at Somna More, near Bhupal Nagaria Village, District Aligarh, U.P., within the jurisdiction of PS Gabhana, due to rash and negligent driving of offending vehicle bearing registration no. DL1CT- 2392 (car) by respondent no. 1/ Sunil? (OPP) Issues No. (ii) to (iv) : same as in case MACP No. 95/17.
MACP No. 98/17(I) Whether the petitioner Neeraj suffered injuries in a motor vehicular accident on 15.04.2017 at 08:00 am on road, at Somna More, near Bhupal Nagaria Village, District Aligarh, U.P., within the jurisdiction of PS Gabhana, due to rash and negligent driving of offending vehicle bearing registration no. DL1CT-2392 (car) by respondent no. 1/ Sunil? (OPP) Issues No. (ii) to (v) : same as in MACP No. 96/17
7. In order to prove their claim, petitioners have examined eye- witnesses/injured namely Niraj Jain and Mamta Jain as PW 2 and PW1 respectively. No other witness was examined in PE. 7.1 Petitioner/ injured Mamta Jain has been examined as PW1 on 25.07.2022. She deposed about the date, time and manner of accident and involvement of R1 in the same. She deposed that the car was being driven by R1 at a very high speed and most rashly and negligently and despite being asked to drive carefully, R-1 did not listen to the occupants of the car and continued driving at a very high speed. When the vehicle reached Somna More, near Bhupal Nagaria Village, the car hit against Neelgai. Due to high Speed, driver lost balance and car overturned and MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 7 of 37fell into a ditch, resulting in injuries to all the occupants of the car. Injured Bobby Jain and Poonam died during treatment in Safdargunj Hospital, while injuries were sustained by petitioner. PW2 has deposed on the lines of the testimony of PW1 and testified inter-alia that grievous injuries were sustained by him.
8. Thereafter, PE was closed vide order dt. 07.11.2022 and matter was posted for RE.
9. Respondent no.3/Reliance GIC Lt.d has examined one witness in defence.
9.1 R3W1 Sh. Amit Kumar tendered his evidence by way of affidavit Ex.R3W1/A and relied on the documents i.e. Insurance Policy of the offending vehicle Ex.R3W1/1 and copy of his I-card Ex.R3W1/2.
10. Documents relied in evidence by Petitioner witnesses:-
PW1 relied on the following documents:-
(i) Copy of Aadhar Card Ex.PW1/1.
(ii) Copy of Aadhar Card of her son Hritik Jain Ex.PW1/2.
(iii) Copy of Aadhar Card of her son Himanshu Jain Ex.PW1/3.
(iv) Copy of Aadhar Card of deceased victim Sh. Bobby Jain Ex.PW1/4.
(v) Photocopy of ITRs of deceased are Ex.PW1/5.
(vi) GD details in response to RTI and attested copy of PM Report and MLC of the deceased are Ex. PW1/6 colly.
(vii) Discharge Summary of Safdargunj Hospital is Ex.PW1/7.
(viii) Photcopies of treatment record of Mamta Jain is Mark C.
(ix) Copy of Election ID card of mother of the deceased/ Sh. Bobby Jain, namely Raj Kumari (now deceased) Mark A. MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 8 of 37(x) Copy of Aadhar card of father of the deceased/ Sh. Bobby Jain, namely Raju (now deceased) Mark B. PW2 relied on the following documents:-
(i) Copy of Aadhar Card Ex.PW2/1.
(ii) copy of Aadhar card of his daughter Sunaina Ex.PW2/2.
(iii) copy of Aadhar card of his daughter Naina Ex.PW2/3.
(iv) copy of Aadhar card of his daughter Tannu Ex.PW2/4.
(v) copy of Aadhar card of his son Abhishek Ex.PW2/5.
(vi) copy of Aadhar card of his deceased wife/victim Poonam Ex.PW2/6.
(vii) copy of medical treatment of PW2 Ex.PW2/7.
(viii) Copy of cremation receipt of deceased victim Mark A.
11. I have heard Sh. Dhiraj Kulshretha, Ld. Counsel for Petitioners and Sh. S.P.S. Chauhan, Ld. Counsel for Respondent No.3 / insurance company. Record of the case has also been perused. Written Submissions filed on behalf of R-3 is also perused. Written arguments are perused and citations are considered.
12. Issue wise findings in all of the four claim petitions are as hereunder: -
ISSUE No.1 (Common in all cases)
13. Issues No. 1 is common in all of the four claim cases bearing MACP No. 95/17, 96/7, 97/17 & 98/17 and hence are being taken up and decided together.
14. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 9 of 37cases and evidence is tested on the touchstone of principle of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
15. In the case in hand, at first it is being examined whether the accident in question took place and the petitioners Mamta Jain and Neeraj Jain sustained injuries and further their spouses namely, Late Sh. Bobby Jain and late Smt. Poonam Jain sustained fatal injuries in the said accident.
16. In the case at hand, it is relevant to mention that no FIR was registered and no investigation was taken up. Hence, the claim of the petitioners solely rests upon testimonies of eye-witnesses and documents on record. In this connection, it is relevant to note that pursuant to the accident on 15.04.2017, one Vinod Kumar, S/o- Sh. Karan Singh gave an intimation to the Police Station Harduwaganj, Aligarh regarding an accident on 15.04.2017 of CAR No. DL-1CT-2392 at 08:00 clock at Somna Mor Bhupal Nagaria village. It was informed by him to the police that the accident took place due to collision of a Neelgai resulting in MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 10 of 37toppling over of the vehicle and falling into a Khedad (pit). The informant was brother-in-law (jija) of the deceased victim Bobby. The first information regarding the accident was given to the Police after two days and Vinod kumar narrated the manner of accident as well as sustaining of injuries by driver Sunil (R-1), passengers namely, Mamta, Bobby Poonam and Neeraja (Neeraj misspelled as Neeraja in DD recorded by police), resulting in death of Bobby and Poonam. Ld. Counsel for petitioner submitted that all of the passengers were family members and on account of death of two of them, there was a delay of two days in reporting of the matter to the Police. It was further submitted that injured and family of deceased injured were not interested in pursuing the remedies under Criminal Law, particularly ni a different state (all of the injured are stated to be the residents of Delhi) and hence, no effort was made by them for registration of FIR. It was further submitted that as the passengers in the vehicle were residents of Delhi, they would have faced hardship in pursuing the case in U.P. and hence, they never filed any criminal case before the appropriate Court in U.P. At the outset, it is observed that mere non-registration of FIR is not fatal to the case of petitioners. Moving forward, it is seen that though there is a delay of two days in lodging DD Entry, the delay is reasonably explained by the petitioners, who submitted that on account of brevement in the family, they could not take steps in time for lodging the DD intimation. The post-mortem report of Bobby also reflects that it was a case of road traffic accident. Deceased Poonam is stated to have expired on the way to hospital after the accident and Ld. Cousnel for petitioner submitted MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 11 of 37that on account of lack of legal and procedural knowledge, family members of Poonam did not get her post-mortem done and instead took her home and cremation took place on the very next day. The cremation receipt of Poonam dated 16.04.2017 is proved on record. It is seen that in the medical documents of injured Mamta Jain and Neeraj Jain, history of road traffic accident is mentioned and hence, it is clear that the matter was reported to the doctor as a road accident case. There is nothing in the medical documents to dispute this claim. Hence, it is clear that all of the injured, including deceased Bobby and Poonam, sustained injuries in a road accident. The petitioners namely, Mamta Jain and Neeraj Jain are eye witnesses/victims and they have clearly deposed regarding the negligence of the driver of the offending vehicle i.e. R-1. They deposed that R1 / Sunil was driving the car at a very high speed and in a rash and negligent manner and he was asked by occupants of the car to drive the same slowly and carefully but he did not listen to them and continued to drive at a very high speed. When they reached near Somna Mor, near Bhupal Nagaria Village, the car hit against a Neelgai due to high speed and thereafter the car overturned and fell into the ditch, due to which all of the occupants of the car received serious injuries. Nothing could be elicited in their cross-examination to create a dent in their testimonies. From the testimonies of PW1, it is clear that RW1 was negligent and did not take due care to avoid collision with the animal on the road. Ld. Counsel for respondent no. 3 has argued that the accident occurred due to 'Act of God' and sudden coming of Neelgai on the road and this is admitted by PW Mamta Jain and hence, R1 cannot be blamed for the MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 12 of 37accident, as he could not have averted the accident despite taking due care. However, I do not concur with the submissions of Ld. counsel for R3 on this point. In her cross-examination, PW1 deposed that "Our car was going at a high speed on the highway and all of a sudden, a Neelgai came on the road and due to which our vehicle overturned and went into roadside fields." This narration of event in cross-examination of PW1 cannot be taken to me that the accident occurred solely due to the animal straying onto the road. Even if Neelgai had come on the road all of a sudden, it cannot be lost side of that the offending vehicle was at a high speed and it was the offending vehicle which hit against Neelgai, as reflected in the testimonies of both of the eye-witnesses. R1 is stated to have lost control of the vehicle on seeing Neelgai on the road, as his vehicle was being driven at a very high speed and in most rash and negligent manner. No evidence has been led by R3 and R1 to show that the accident occurred solely due to Neelgai having come on the road. Ld. Counsel for respondent no. 3 deposed that R1 had a duty to maintain distance from the vehicle moving ahead and not a stray animal coming on the road unanticipated. However, I do not find force in such a submission, once eye-witnesses have categorically deposed that the driver lost balance due to high speed of his vehicle. R1 did not examine himself in evidence and R3 has not chosen to examine R1 in evidence to rebut the testimonies of eye-witnesses on the point of negligence of R1. Ld. Counsel for R3 argued that it was impossible for R1 to have remained unscathed in the accident and hence, insurance company takes the alternative plea that the offending vehicle was not being driven by MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 13 of 37R1. However, I do not find any merit in this contention either. None of the eye-witnesses have averred on the point on sustaining of any injuries by R1. R1 himself is silent in his written statement in this regard. R1 has not led any evidence and has not even filed any reply to the claim petition and he was the best person to have deposed regarding sustaining of any injuries by him. R4 is registered owner of the vehicle but she did not contest the claim petition on any ground whatsoever and did not choose to appear before the Tribunal and file Written Statement. Both of the eye-witnesses have deposed that they were going from New Ashok Nagar to Aligarh in a rented car bearing No. DL-1CT-2392. It is not disputed by respondents that the injured were traveling in a car taken on hire. Though a suggestion was given to PW1 that some unknown vehicle had hit their car and in order to grab compensation, story of Neelgai was concocted, it was denied by PW1. It is not the defense put up by R3 that injured were not travelling in the offending car or that the same did not meet with an accident. PW2 has specified that the offending vehicle was hired for Rs.3000/- and they had started from New Ashok Nagar at 06:00 a.m. on 15.04.2017 and further in the vehicle, Neeraj, Bobby Jain, Mamta Jain, Hritik Jain and Mansu Jain were traveling and deceased Poonam Jain was sitting in the middle seat of the accidental vehicle, while he was sitting at the driver side. He also deposed that his wife died on way to the hospital. Ld. Counsel for R3 has also taken plea that the presence of Neelgai is doubtful as there is no evidence to suggest that any injury was sustained by Neelgai in the alleged road accident. However, this plea does not hold any water. No suggestion was given to MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 14 of 37PW1 and PW2 that there was no collision with any Neelgai. Further there is no evidence led by R3 to even ex-facie prove that the possibility of presence of Neelgai on road at the spot of accident was nil. I am strengthened in my opinion by the judgment bearing citation as United India Insurance Co. Ltd Vs. Raj Bala & ors., Punjab and Haryana High Court, as decided on 07.02.2022 where the contentions raised by the insurance company / respondent on the ground that accident took place due to stray animal i.e. neelgai appearing in front of the offending vehicle and not due to rash and negligent driving by the driver and further that no FIR was lodged by petitioners in respect of the alleged accident were rejected by observing that had R-3 been riding the motorcycle at a moderate speed and with due care and caution, the accident might have been averted and negligence on his part is duly established by applying the principles of res ipsa loquitor and strict liability and further that registration of a criminal case is not a condition precedent to file a claim petition and statement giving a right not to prosecute for criminal negligence cannot amount to an admission that there was also no civil liability to sustain a claim for compensation and further that in a claim petition seeking compensation under Motors Vehicle Act, petitioner is merely to establish case on the touchstone of preponderance of probabilities and standard of proof beyond reasonable doubt could not have been applied in such cases. It was also observed that in case of comprehensive policy, there is no need for Tribunal to go into the question whether the insurance company is liable to compensate MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 15 of 37for the death or injury of a pillion rider on a two wheeler or the occupants of a private car.
17. On considering the afore-said testimonies of eye-witnesses, the police investigation report and the supporting material on record, it is found that the manner of accident and involvement of the offending vehicle and its being driven in a rash and negligent manner by R1 is duly proved. In view of this Court, afore-said material is found sufficient to establish that the accident had occurred due to rash and negligent driving of Car in question by respondent no.1, resulting in injuries to four passengers travelling in the car i.e. Petitioners namely Mamta Jain and Neeraj Jain and their spouses and further that due to the injuries sustained, their spouses namely Bobby Jain and Poonam Jain respectively had expired. Therefore, issue no.1 is decided in favour of the petitioner/s and against all of the respondents.
ISSUE NO. 2:
Whether the petitioner/s is/are entitled to compensation on account of said injuries and if yes, to what extent and from whom? (OPP)
18. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 16 of 37(MACP No. 95/17 : In Mamta Jain Vs. Sunil & Ors.) MEDICAL EXPENSES
19. No amount is being given under this head as no medical bill is relied upon and the only document relied upon is discharge summary Ex.PW1/7 issued by Safdarjung hospital and it is clear that the treatment was done in a Government hospital and free of cost. Hence, no amount as compensation is being granted under this head. PAIN & SUFFERING
20. According to testimony of petitioner Mamta Jain, she received scalp hematoma on right parietal region and cervical injury (left shoulder) and other multiple injuries all over the body in the accident and she remained admitted in Safdarjung Hospital from 15.04.2017 to 18.04.2017 and her medical treatment continued as an out patient for about one year. In the petition, it is mentioned by petitioner Mamta Jain that she alongwith all other injured was removed to J.N. Medical College, Aligarh, from where she was referred to Safdarjung Hospital, even though no such thing is mentioned in her testimony where she only made reference to being removed to Safdarjung Hospital after the accident. No document other than discharge summary Ex. PW1/7 of Safdarjung Hospital has been relied upon by her in evidence. This document reflects that she was admitted in hospital on 16.04.2017 and discharged on 18.04.2017 and abrasion on right lower limb and multiple abrasions on left check is observed in this medical document. Scalp hematoma is also observed under the heading investigations and no solid organ injury was found. From the medical documents placed on record, MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 17 of 37it cannot be deciphered that any serious injuries was sustained by petitioner Mamta Jain. No doctor was examined to reflect on the nature of injuries either. Hence, the nature of injuries is to be taken as 'simple'. Hence, an amount of Rs.5000/- is awarded to petitioner Mamta Jain for pain and suffering on account of the accident. LOSS OF INCOME
21. Petitioner Mamta Jain has not led any evidence to show any loss of income. She is stated to be house wife. However, considering that she remained hospitalized for two days and her household responsibility must have suffered during that period, a lump sum amount of Rs.1000/- is granted to her under above-stated head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
22. There is nothing in the document Ex. PW1/7 or testimonies of witnesses to suggest that she was rendered any free services by police or CATs or anyone else for visiting the Hospital. Hence, an inference can be drawn that she must have incurred some expenses on her visit to hospital. She has not explained as to how for simple injuries she needed or hired an attendant. No special diet was prescribed in the medical documents and there is nothing in the medical documents to suggest that any special diet was needed for the injuries sustained by the petitioner. Hence, a sum of Rs.5000/- is being granted towards conveyance expenses and special diet and no compensation is being granted towards attendant charges.
23. Thus, the compensation awarded to the petitioner Mamta Jain is summarized as under:-
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors. MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.Page 18 of 37
Sl. No. Head of compensation Amount
1. Medical Expenses. Nil.
2. Pain & Suffering. Rs.5,000/-
Loss of income (during Rs.1,000/-
3.
treatment).
4. Conveyance and Special Diet Rs.5000/-
5. Attendant Charges Nil.
TOTAL Rs.11,000/-
(MACP No. 96/17 : In Mamta Jain Vs. Sunil & Ors.) ASSESSMENT OF INCOME OF THE DECEASED:
24. PW1 is the wife of the deceased and one of the claimants. Other claimants are parents and children of the deceased. All of the claimants are stated to be dependents of deceased. It has come in her evidence that deceased was around 40 years of age and was having tailoring shop in the name and title of Naina Tailors at A-420, New Ashok Nagar, East Delhi and was earning Rs.3,67,354/- per annum and that he was an income tax payee. She proved the ITR for the assessment years 2006-07 to 2016-17 on record. The income for assessment year 2006-07 is shown as 1,10,103/-, for assessment year 2007-08 the income of Bobby Jain proprietor of Naina Tailor is shown as Rs.1,12,415/-. i The income tax return of assessment year 2015-16 shows the income as Rs.3,54,833/-. The income tax return of assessment year 2016-17 shows the income as Rs.3,67,354/- The income tax return of assessment year 2016-17 shows the income as Rs.3,67,354/-. The ITR shows the steady increase of income of Bobby jain over the years. No serious dispute to the ITRs has been raised by the respondents and petitioner has denied the suggestions MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 19 of 37that the ITRs are false and fabricated and that her husband was unemployed. The accident took place on 15.04.2017 and on the basis of ITR, the annual income of the petitioner can be taken to be as Rs.3,65,084/- {3,67,354-2270 (income tax)}. Therefore, it is considered that the deceased was earning Rs.3,65,084/- annually. Based on this salary, the compensation is now computed as follows :-
APPLICATION OF MULTIPLIER:
25. The date of birth of the deceased as per Aadhar Card is '1973'. No date and month are specified in the aadhar card. No other document in proof of year (date of birth ) of deceased Bobby Jain is filed on record. In the income tax statement, though date of birth of Bobby Jain is mentioned as 15.08.1976, the same is inconsistent with the Aadhar card and hence cannot been considered as proof of age of the deceased as there is nothing to reflect the basis on which the deceased claim and represented his date of birth to be 15.08.1976 in the IT returns filed by him. On the basis of Aadhar card, it can be said that deceased was at least 43 years old at the time of accident. Therefore, the age of deceased was around 43 years at the time of accident. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:-
MULTIPLIER AGE GROUP OF
DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 20 of 37
yrs
M-16 Age group between 31 to 35
yrs
M-15 Age group between 36 to 40
yrs
M-14 Age group between 41 to 45
yrs
M-13 Age group between 46 to 50
yrs
M-11 Age group between 51 to 55
yrs
M-9 Age group between 56 to 60
yrs
M-7 Age group between 61 to 65
yrs
M-5 Age group between 66 and
above
In view of the above, multiplier of 14 shall be applicable in the present case.
Future Prospects:
26. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 21 of 37below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
27. The deceased can be considered as self-employed. In view of the above said judgment, the deceased, who was 43 years of age, an addition of income of deceased to the extent of 25% has to be considered in view of decision of a Constitution Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (Supra) for the benefit of future prospects.
Deduction towards Personal Living Expenses:
28. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 22 of 37in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of deceased dependents Where dependent is 1 Half Where the number of dependent family 1/3rd members is 2 to 3 Where the number of dependent family 1/4th members is 4 to 6 Where the number of dependent family 1/5th members exceeds 6 (six)
29. All the five petitioners are considered as dependents upon the deceased i.e. wife of deceased Mamta Jain, children of deceased namely Hritik Jain and Himanshu Jain and parents of deceased namely Raj Kumari and Raju. Accordingly, one-fourth of the income of the deceased is to be deducted towards his personal living expenses.
30. Thus, the loss of dependency is computed as Rs 47,91,727/- ( . 3,65,084/-x 3/4 x 125/100 x 14).
NON-PECUNIARY DAMAGES:
31. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 23 of 37Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. In this case, there are five legal heirs of the deceased. Thus, claimants are entitled to a sum of Rs.2,76,000/- (48,000x5+18,000+18,000) under this head.
32. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount
Awarded
1. Annual income of deceased (A) Rs.3,65,084/-
2. Add future prospect (B) @ 25% of
3,65,084 =
91,271
3. Less 1/4th towards personal and living Rs.114088/-
expenses of the deceased (C)
4. Annual loss of dependency (A+B)- Rs.3,42,267/-
C=D
5. Annual loss of dependency (Dx12) 6. Multiplier (E) 14
7. Total loss of dependency (Dx12xE=F) Rs.47,91,737/-
8. Medical expenses (G) --
9. Compensation for loss of consortium Rs.2,40,000/- MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 24 of 37(I) (48,000x5)
10. Compensation for loss of estate (J) Rs.18,000/-
11. Compensation for funeral expenses (K) Rs.18,000/-
12. Total compensation Rs.50,67,737/-
rounded off to Rs,50,68,000/-
33. Thus, petitioners i.e. wife, two minor children and parents of the deceased in the instant case, shall be entitled to a total compensation of Rs.50,68,000/- only.
34. It is relevant here to mention that petitioner No 4 in claim petition no. 96/17 namely Rajkumari (mother of deceased Bobby Jain) expired during pendency of the present claim petition and in her place now her son Niraj Jain, Pappu Kumar and Beena Jain (legal heirs of deceased) have been impleaded as P-4 and the share of compensation of P-4 shall now be distributed amongst them. It is relevant here to mention that though P-5 has not been impleaded as R-4, nonetheless he is also one of the class I legal heirs of deceased Raj Kumari and shall be considered as R-4 in the case for the purpose of disbursement of her share of compensation.
(MACP No. 97/19 : In re- Niraj Jain Vs. Zafaruddin & Ors.) ASSESSMENT OF INCOME OF THE DECEASED:
35. PW2 is the husband of the deceased Poonam Jain and one of the claimants. It has come in his evidence that his wife was 39 years of age at the time of accident and running a shop namely Naina Tailors, at MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 25 of 37A-420, New Ashok Nagar, Delhi and was earning Rs. 20,000/- per month. Here it is relevant to mention that testimony of PW2 is in contrast to the testimony of PW2 regarding the name of the person who was running the above-said tailoring shop. It is not the claim of the PW2 that his wife was joint owner of the tailoring shop with Bobby Jain (late) or an employee there. The ITR documents Ex. PW1/4 of deceased Bobby Jain clearly reflect that he was the sole proprietor of Naina Tailors and there is no dispute to this document by the petitioners. Hence in the absence of evidence to show that Mrs. Poonam was employed, no assumption regarding her salary as Rs. 20,000/- per month can be made. As per aadhar card of deceased Poonam Jain, she was around 39 years of age. No evidence has been led in proof of it. The calculation sheet filed by the petitioners' counsel mentions the income of deceased Poonam Jain on the basis of minimum wages of a skilled worker. Further, no qualification document has been filed to show that deceased Poonam had requisite skill to work at any tailor shop. No educational record has been filed or proved on record either. PW2 has admitted that deceased was not an income tax payee and did not have PAN card and he does not have any passbook to show any income of his wife. Therefore, the income of deceased can be considered at par with minimum wages applicable to unskilled category prevailing in the State of Delhi at the time of accident (15.04.2017), which were Rs.13,818/- (13584 +234) per month. Accordingly, the income of the deceased is taken as Rs.13,818/- per month. The compensation is now computed as follows :-
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors. MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.Page 26 of 37
APPLICATION OF MULTIPLIER:
36. The age of the deceased as per Aadhar Card is around 39 years. Therefore, the age of deceased was around 39 years at the time of accident. It is stated that deceased was survived by her husband, two major daughters and one minor daughter and a minor son and all five of them were dependent on the deceased. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:-
MULTIPLIER AGE GROUP OF
DECEASED
M-18 Age group between 15 to 20 &
21 to 25 years)
M-17 Age group between 26 to 30
yrs
M-16 Age group between 31 to 35
yrs
M-15 Age group between 36 to 40
yrs
M-14 Age group between 41 to 45
yrs
M-13 Age group between 46 to 50
yrs
M-11 Age group between 51 to 55
yrs
M-9 Age group between 56 to 60
yrs
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 27 of 37 M-7 Age group between 61 to 65
yrs
M-5 Age group between 66 and
above
In view of the above, multiplier of 15 shall be applicable in the present case.
Future Prospects:
37. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 28 of 37income means the income minus the tax component."
38. The deceased can be considered as self-employed. In view of the above said judgment, the deceased, who was 39 years of age, an addition of income of deceased to the extent of 40% has to be considered in view of decision of a Constitution Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (Supra) for the benefit of future prospects.
Deduction towards Personal Living Expenses:
39. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of deceased dependents Where dependent is 1 Half Where the number of dependent family 1/3rd members is 2 to 3 Where the number of dependent family 1/4th members is 4 to 6 Where the number of dependent family 1/5th MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors. MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.Page 29 of 37
members exceeds 6 (six)
40. All the five petitioners are considered as dependents upon the deceased. Accordingly, one-fourth of the income of the deceased is to be deducted towards her personal living expenses.
41. Thus, the loss of dependency is computed as Rs 26,11,602/- (13,818/-x 3/4 x 140/100 x 12x 15).
NON-PECUNIARY DAMAGES:
42. In case of Pranay Sethi (supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. In this case, there are five legal heirs of the deceased. Thus, claimants are entitled to a sum of Rs.2,76,000/- (48,000x5+18,000+18,000) under this head.
43. Considering the aforementioned factors, the total compensation is calculated as under:
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors. MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors. MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.Page 30 of 37
S. No. Head Amount
Awarded
1. Monthly income of deceased (A) Rs.13,818/-
2. Add future prospect (B) @ 40% of 13,818
= 5527.2
3. Less 1/4th towards personal and living Rs 4836.3 = expenses of the deceased (C) 1/4th of (13,818+5527.2
4. Monthly loss of dependency (A+B)- Rs.14,508.9/-
C=D
5. Annual loss of dependency (Dx12) Rs. 1,74,106.8 6. Multiplier (E) 15
7. Total loss of dependency (Dx12xE=F) Rs.26,11,602/-
8. Medical expenses (G) --
9. Compensation for loss of consortium Rs.2,40,000/-
(I) (48,000x5)
10. Compensation for loss of estate (J) Rs.18,000/-
11. Compensation for funeral expenses Rs.18,000/-
(K)
12. Total compensation Rs.28,87,602/-
rounded off to Rs.28,88,000/-
Thus, petitioners i.e. husband and children of the deceased in the instant case, shall be entitled to a total compensation of Rs.28,88,000/-only.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 31 of 37(MACP No. 98/17 : In Niraj Jain Vs. Sunil & Ors.) MEDICAL EXPENSES
44. Only medical treatment record relied on by the petitioner is document Ex. PW2/7 (colly), which consist of an out patient reference card, one OPD prescription, two x ray slips one treatment slip of medical College Hospital, AMU, Aligarh and two bills. The bills are for an amount of Rs.280/- (after discount, unsigned bill) and Rs. 350/-. Hence an amount of Rs.630/- is being granted under this head. PAIN & SUFFERING
45. According to the testimony of petitioner Neeraj Jain, he received left hand fracture, head injuries and other multiple injuries and his medical treatment continued for about one year and further he spent a sum of Rs.50,000/- on his medical treatment. There is no MLC of Niraj produced on record and is is seen that there is some observation in outpatient reference card below the heading x ray as BBFA L, Osis, closed traumatic fracture BBFA L without DNUB and while doctor has employed only symbol and short form and further no x ray plate or report is filed and proved on record, it can be still be concluded from the testimony of Neeraj as a whole that he sustained grievous injuries. Medical document Ex.PW2/7 shows that petitioner was treated in Safdarjung Hospital with alleged history of road traffic accident on 15.04.2017. He had a history of head injuries and a contious lacerated would over right side of forehead about 6 cm in size was observed and injections were advised to him. No doctor was examined to reflect on MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 32 of 37the nature of injuries either. Hence, an amount of Rs.25,000/- is awarded to petitioner Niraj Jain for pain and suffering on account of the accident. LOSS OF INCOME
46. Petitioner Niraj Jain has not led any evidence to show any loss of income. He has stated that he was working as mason in Delhi and earning Rs.200000/- per month. He has not filed any bank pass-book or document in support of his income and there is nothing in the medical document to suggest that he was hospitalized even for a day. However, considering that he was treated in Safdarjung Hospital and has sustained fracture, he may have remained in doors and unable to work at least for a month. He has not led any evidence in support of his income. He is stated be the resident of Delhi as per his aadhar card Ex. PW2/1, his income has to be taken as per the minimum wages applicable to unskilled worker for Delhi on the date of accident and the same is 13,818/- (13584+234). However, the petitioner is granted a sum of Rs.13,818/- under above-stated head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
47. There is nothing in the document Ex. PW2/7 or testimonies of witnesses to suggest that she was rendered any free services by police or CATs or anyone else for visiting Hospital. Hence, an inference can be drawn that she must incurred some expenses on her visit to hospital. She has not explained as to how for simple injuries she needed or hired an attendant. No special diet was prescribed in the MLC and there is nothing on the medical documents to suggest that any special diet was needed for the injuries sustained by the petitioner. Hence, a sum of MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 33 of 37Rs.5000/- is being granted towards conveyance expenses and special diet.
48. Though no evidence has been led to show that petitioner had hired any attendant during his treatment and he has not claimed anything under this head. It cannot be ignored that family members of petitioner must have had to render their services for providing assistance to the petitioner for his routine activities and that would definitely suffer their work/job. For claiming compensation, necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has been or would be necessitated by the wrong doing of the driver. (DTC & Ors Vs. Lalita, 1983 ACJ 253). Therefore, the petitioner is awarded a sum of Rs.5,000/- as attendant charges.
49. Thus, petitioner is granted a total compensation of Rs.10,000/- (5,000+5,000) under this head.
50. Thus, the compensation awarded to the petitioner Mamta Jain is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses. 630
2. Pain & Suffering. Rs.25,000/-
Loss of income (during 13,818
3.
treatment).
4. Conveyance and Special Diet Rs.5000/-
5. Attendant Charges Rs.5,000/-
TOTAL Rs.49,448/-
rounded of
Rs.49,000/-
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 34 of 37LIABILITY :
51. Now, the question arises as to which of the respondents is liable to pay the compensation amount. It is seen that the Offending Vehicle was duly Insured with the Respondent no. 2 / Reliance General insur. company Ltd. Thus, the respondents No.2 is liable to pay the compensation amount to the petitioner. Insurance company has taken up the plea that it is not liable for compensation as vehicle was insured as private vehicle but admittedly plied on hire at the time of accident. In this regard, it is relevant to quote the finding in Judgment titled as United India Insurance Co.Ltd Vs. Kalawathi, ILR 2001 KAR 2328, wherein it was observed that "That apart we do not find rationale for the insurer as a 'State' to discriminate between the paid inmates and gratuitous inmate when the vehicle is covered with comprehensive policy. If the vehicle is a private vehicle plied on hire, the owner may be liable for penal and fiscal consequences under the motor vehicle Act for the payment of penalty and taxes applicable to the commercial vehicle. But from the stand point of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of the inmates of private vehicle, the insurer cannot avoid liable on the ground that the inmate is a paid passengers. In that view, we hold that the terms in the policy, which discriminates the liability of the insure for the paid inmates and gratuitous inmates is discriminatory and illegal. In United India Insurance Company Ltd. Vs. Basavaraj 2020 SCC online Karnataka 1652 decided on 02.11.2020 reliance was placed on above quoted MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 35 of 37judgment and it was held that fastening of the liability on the insurance company to pay compensation cannot be found fault with, while dismissing the appeal filed by insurance company claiming no liability on the ground that private vehicle was plied on hire. Hence, insurer is liable to pay the compensation amount.
ISSUE No. 3:
52. The petitioner/s have conducted the proceedings in these cases diligently. Therefore, they are entitled for interest @ 7.5% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization.
RELIEF:
(MACP No. 95/17 : In Mamta Jain Vs. Sunil & Ors.)
53. The petitioner Mamta Jain is awarded compensation in the sum of Rs.11,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization. (MACP No. 96/17 : In Mamta Jain & Ors. Vs. Sunil & Ors.)
54. The petitioners are awarded compensation in the sum of Rs.50,68,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization. (MACP No. 97/17 : In Niraj Jain & Ors. Vs. Sunil & Ors.)
55. The petitioners are awarded compensation in the sum of Rs.28,88,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 36 of 37(MACP No. 98/17 : In re- Niraj Jain Vs. Sunil & Ors.)
56. The petitioner Niraj Jain is awarded compensation in the sum of Rs.49,000/- alongwith interest @ 7.5% per annum from the date of filing of the petition till the date of realization.
57. Respondent No. 2 / insurer shall deposit the award amount in all the four claim cases within 30 days from today.
Announced in the open (Mayuri Singh) Court on 09.11.2023 Presiding Officer-MACT (East) (Total 37 pages) Karkardooma Courts, Delhi
MACP No.95/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.96/17 ; Mamta Jain Vs. Sunil & Ors.
MACP No.97/17 ; Niraj Jain Vs. Sunil & Ors.
MACP No.98/17 ; Niraj Jain Vs. Sunil & Ors.
Page 37 of 37