Delhi District Court
Office Address: vs Chunaram Dhatarwal on 18 December, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.228/14
Date of Institution: 22.10.2009
IN THE MATTER OF:
Sanjay Lodha
S/o Padma Chand
Present Address:
B6/7, Okhla Industrial Area
PhaseII, Delhi
Permanent Address:
144, Mohatta Bhawan
KE Pass, Dungar Garh
Ward No.5, Tehsil Dungar Garh
Distt Bikaner, Rajasthan.
Office Address:
B6/7, Okhla Industrial Area
PhaseII, Delhi ...Petitioner
Versus
1. Chunaram Dhatarwal
S/o Shri Deda Ram
R/o Village Humera, Umera Thana
Naya Sehar, Tehsil Bikaner
Distt. Bikaner, Rajasthan.
Suit No. 228/14 Page no. 1 of 43
Sanjay Lodha v Chunaram Dhatarwal & Ors.
2. Tolaram Dhatarwal
S/o Shri Deda Ram
R/o Village Humera
Umera Thana
Naya Sehar, Tehsil - Bikaner
Distt Bikaner, Rajasthan.
3. Rathore Travels
Through Samandar Singh Rathore
Near Nagar Parishad
Opposite Rama Hotel
Bikaner, Rajasthan.
4.The New India Assurance Company Limited
Registered & Head Office
New India Assurance Building
87, Mahatma Gandhi Road
Fort Mumbai400001
5.Late Shri Rajesh Yadav
S/o Ram Lakhan Yadav
Kishanpura Road
Dehradun, Uttarakhand
Through his legal heirs
(deleted)
6. Gateway Rail Freight Ltd.
17, Ahluwalia Chambers
Local Shopping Complex
Pushp Vihar
Saket, New Delhi.
7. IFFCOTOKIO General Insurance Company Limited
Registered OfficeIFFCO Sadan
C1 Distt. Centre, Saket
Suit No. 228/14 Page no. 2 of 43
Sanjay Lodha v Chunaram Dhatarwal & Ors.
New Delhi110017 ...Respondents
Final Arguments heard : 19.11.2014 Award reserved for : 18.12.2014 Date of Award : 18.12.2014 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 18.05.2009 at about 4.30 p.m when he was traveling by a Tour and Travel bus bearing registration No.RJ07 PA0007 from Bikaner, Rajasthan to Delhi soon after Rohtak City, on Rohtak bypass itself, near IMT, the driver of the bus due to his rash, careless and negligent driving and at the time of overtaking other vehicles hit a container, bearing registration No.HR55G4991 from the front, which was coming from its own legitimate lane. It is averred that the driver of the container immediately died on the spot. It is averred that it is even disclosed from the FIR itself that the driver was requested to drive carefully and slowly by some passengers from the bus as he was driving in a very harsh, careless and negligent manner but he did not listen and care about the passengers' life and safety. It is averred that immediately thereafter the petitioner sustained a number of Suit No. 228/14 Page no. 3 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
injuries on his body specially on his lower portion and immediately became unconscious. It is averred that the accident took place due to the rash and negligent driving by the driver of the bus. By way of amendment it was also sought to be added that if the driver of another offending vehicle i.e. truck bearing No.HR55G4991 took extra care, the accident might have been avoided and there was clear contributory negligence on the part of both the offending vehicles. It is stated that Shri Jagdish s/o Beduram Kaum Shayami, father of one of the passengers Mr. Vijay lodged an FIR with respect to the accident being FIR No.165/2009 in Police Station Sampla Distt Rohtak, Haryana dated 18.5.2009 against the driver of the bus under sections 279/337/304A IPC.
3. It is averred that the petitioner was 31 years approximately and was working as Senior Executive - North with M/s Kothari Metals Limited and was earning Rs.26,500/ p.m. as on the date of the accident and he was paying Rs. 41,821/ annually as income tax. It is averred that the petitioner had sustained temporary injuries and could not walk and work properly and was undergoing medical treatment. It is averred that the petitioner was admitted in Sir Ganga Ram Hospital from 18.5.2009 to 30.5.2009 and bill of Rs.2,84,095/ was raised out of which Rs.84,095/ were paid by the petitioner and Rs.2,00,000/ was paid by 'The Healthcare Service P. Ltd.'; he was again admitted from 17.6.2009 to 20.6.2009 in City Hospital and total bill of Rs.53,867.20 was raised which was paid by the petitioner himself; he was again admitted from Suit No. 228/14 Page no. 4 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
16.7.2009 to 16.7.2009 in Sir Ganga Ram Hospital and bill of Rs.35,494/ was raised and paid by the petitioner himself and as such the petitioner had paid Rs.3,73,456/ in aggregate. It is averred that the medical treatment of the petitioner was still continuing at home and at clinics and he had spent more than Rs.75,357/ on purchase of medicines and treatment as well as on special diet etc. Continuing expenses on medical treatment for the period 23.7.2009 to 6.10.2010 were computed as Rs.1,22,540/. It is averred that the petitioner had undergone and was still continuing to have physical pain and mental agony and was suffering from temporary disability due to which he could not work and walk properly and he was still on bed rest due to which he had not been attending his office from the date of the accident. It is averred that the petitioner had lost income of Rs.1,19,250 from the date of the accident. It is averred that the petitioner had suffered irreparable loss and was still facing various repercussions of mental and physical shock occurred due to the accident. It is averred that the petitioner and his family members had to meet the medical expenses with great hardship and apart from the hospital expenses the other family members had to travel from Bikaner to Delhi and vice versa. It is averred that due to the accident the petitioner had been suffering long mental agony and harassment. It is averred that the petitioner has meritorious profile and is very hard working, ambitious and confident but after the accident he had lost his confidence and felt nervous appearing in departmental examinations that are held periodically with the effect that his progressive career had been ruined. It is averred that the petitioner was also Suit No. 228/14 Page no. 5 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
suffering from inferiority complex as both physically and mentally he had become weak. It is averred that the petitioner was still undergoing medical treatment which was very expensive and the major part of his savings and salary was spent on purchasing medicines and the petitioner solely depended on his savings. It is averred that the petitioner has no extra financial support and he is living on his own and he has already suffered economically, mentally and physically or is likely to suffer due to the alleged accident. It is averred that the petitioner has lost expectation of life i.e. on account of injury the normal longevity of life is shortened and he is facing inconvenience, hardship, discomfort, disappointment, frustration and stress in life. It is averred that the respondent No.1 is the driver of the bus involved in the accident in which the petitioner was travelling, respondent No.2 is the owner of the bus, respondent No.3 is the Agency/ Tour operator who runs the bus and respondent No.4 is the insurer of the bus and all the four respondents are jointly and/ or severally liable to pay the compensation to the petitioner. It is prayed that an amount of Rs.10,12,603/ be awarded as compensation in favour of the petitioner /injured and against the respondents jointly and severally.
4. Written statement was filed on behalf of the respondent No.4 taking the preliminary objections that in case the driver of the alleged offending vehicle did not have a valid and effective DL at the time of the accident, the respondent No.4 is not liable to pay compensation as also if the accident Suit No. 228/14 Page no. 6 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
occurred due to the petitioner's own fault or there was contributory negligence. The averments made in the claim petition were denied. It is stated that the alleged offending vehicle No.RJ07PA0007 was insured in the name of Tola Ram with the respondent No.4 vide policy No.331302/31/08/01/00001076 valid from 10.6.2008 to 9.6.2009.
5. Written statement was filed on behalf of the respondent No.6 M/s Gateway Rail Freight Ltd stating that the respondent No.6 Gateway Rail Freight Limited, is a company incorporated under the Companies Act, 1956 having its registered office at SF7, Second Floor, D2 'Southern Park', Saket District Centre, Saket New Delhi110017. All the averments qua the respondent No.6 were vehemently denied. Preliminary objections/ submissions were made that the truck as mentioned in the claim petition bearing registration No.HR55G4991 belonging to the respondent No.6 did not cause the unfortunate incident and there was no negligence on the part of the driver of the respondent No.6 as he was driving in his own lane as per the safety norms. It is stated that a bare perusal of even the FIR of the incident reveals that the truck was in its own lane and there was no over speeding or lane changing on the part of the vehicle of the respondent No.6. It is averred that the vehicle bearing registration No.HR55G4991 was duly covered under a valid comprehensive insurance policy and also had a valid National Permit to ply on the roads. It is stated that the truck of the respondent No.6 was being driven by one Shri Rajesh Kumar who infact suffered serious injuries and Suit No. 228/14 Page no. 7 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
unfortunately the said injuries proved to be fatal and caused his untimely demise and the trailor / truck in question was being driven by him in the course of his employment and he possessed a valid driving license permitting him to drive heavy/ commercial vehicles. It is averred that the driver of the respondent No.6 was driving the vehicle in the most cautious manner, neither he was drunk nor he violated any other traffic rules and his vehicle was also at normal speed. It is averred that the driver of the bus through which the petitioner was traveling was rash and negligent and the reckless driving by the driver resulted into the unpleasant situation and the accident occurred. It is averred that the driver of the bus attempted to overtake by overspeeding and changing lanes in which process the bus hit the truck of the respondent No.6 which resulted into the unfortunate incident. It is averred that under these circumstances, the respondent No.6 cannot be / ought not be saddled with any sort of liability/ negligence whether contributory or independent. The averments made in the claim petition were denied. It is averred that the amount as stated is exaggerated without any basis and/ or substantial documentary proof. It is averred that the bus hit the truck/ trailer of the respondent No.6 in which unfortunate incident the driver of the truck lost his life. It is averred that the respondent No.6 has no connection/ link with the bus. It is averred that the amount claimed is excessive, arbitrary and without basis. It is admitted that the truck of the respondent No.6 was being driven in its own lane and the only cause of the unfortunate accident was the rash and negligent act of the bus driver and as such the respondent No.6 cannot be Suit No. 228/14 Page no. 8 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
saddled with any liability (contributory or individual) and the liability can be cast only on the respondents No.1 to 4. It is averred that the vehicle of the respondent No.6 was comprehensively insured with a valid insurance policy, the vehicle was in fit condition, the driver was holding a valid license and did not flout any traffic rules, laws or byelaws.
6. Written statement was filed on behalf of the respondent No.7 taking the preliminary objections that the petitioner has not come before the court with clean hands and has concealed and suppressed the material facts from the court and the petition has been filed without any cause of action against the respondent No.7. It is averred that the respondent No.7 is not liable to pay any amount of compensation as the offending vehicle /Tour & Travel's Passenger bus bearing registration No.RJ07PA0007 was not registered with the respondent No.7. It is averred that the petition is bad for nonjoinder and mis joinder of parties. The averments made in the claim petition were denied. It is averred that FIR No.165/2009 has been falsely registered at Sampla, District Rohtak, Haryana. It is averred that the amount claimed by the petitioner is highly imaginary, illusive and without any legal basis and footing. It is averred that the petition against the respondent No.7 is misconceived, vexatious, baseless, wrong, unfounded and an afterthought.
7. Vide order dated 27.9.2010 of my learned predecessor the respondents No.1 to 3 were proceeded exparte. Matter was listed for conciliation but Suit No. 228/14 Page no. 9 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
thereafter it was stated that conciliation was not possible as it was a case of contributory negligence since there was a head on collision between two vehicles. From the pleadings of the parties, the following issues were framed vide order dated 30.10.2010 of my learned predecessor:
1. Whether the petitioner received injuries in road accident on 18.5.2009 due to rash and negligent driving of vehicle (container) no. HR55G4991 R1, owned by R2 and insured with R3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount? OPP
3.Relief.
An application under Section 170 MV Act was filed on behalf of the respondent No.4 which was allowed vide order dated 28.1.2011 of my learned predecessor. Vide order dated 28.11.2011 of my learned predecessor the application filed on behalf of the petitioner for placing on record the bills relating to the treatment after the filing of the petition was allowed. An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 13.4.2012 of my learned predecessor. On 8.7.2013 it was submitted by the learned counsel for the petitioner that the driver of the truck that was sought to be impleaded as respondent No.5 had expired in the accident. Vide order dated 10.2.2014 the application under order 6 rule 17 CPC filed on behalf of the petitioner to Suit No. 228/14 Page no. 10 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
include the name of the driver of the truck bearing No.HR55G4991 was allowed. An application filed on behalf of the petitioner under order 1 rule 10 CPC to implead the driver, owner and insurance company in respect of truck No.HR55G4991 was also allowed vide order of the said date. An application filed under Section 151 CPC on behalf of the petitioner was disposed of with direction to implead the driver of the truck through the L Rs. An application was filed on behalf of the petitioner for deletion of the name of the respondent No.5 who is the driver of the truck from the memo of parties which was allowed vide order dated 29.5.2014. On 27.8.2014 it was submitted by the learned counsel for the respondent No.6 (5) that the verification of the DL had been got done and the same had been found to be valid.
8. The petitioner Shri Sanjay Lodha appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he sustained multiple injuries all over the body especially on his lower portion and due to the injury, he immediately became unconscious. He stated that the total amount of the bills is of Rs.5,71,353/. He stated that from 13.10.2010 to 4.6.2014 amount of Rs.88,232/ had been also incurred and as such the total amount spent till date comes to Rs.6,59,585/. He stated that as per the disability certificate, he was facing 41% disability and for the said reason he was not able to enjoy the life naturally and was facing extreme hardship on account of the rash and negligent driving of the offending vehicles. Copy of the Voter I card is Suit No. 228/14 Page no. 11 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
Ex.PW1/1, Lease Agreement dated 15.4.2008, bill of Airtel are Ex.PW1/2 and Ex.PW1/3, bill of Reliance is Ex.PW1/4, payment voucher dated 27.4.2009 of Rs.24,000/ issued by M/s Kothari Metals Ltd to him is Ex.PW1/5, ITR pertaining to the year 2009 i.e. the year of accident is Ex.PW1/6, certified copy of charge sheet filed in FIR No.165/09 dated 18.5.2009 u/s 279/337/304 A IPC PS Sampla, Rohtak, Haryana is Ex.PW1/7 (colly), travel ticket of M/s Morwari Travels dated 17.5.2009 is Ex.PW1/8, MLC dated 18.5.2009 prepared by hospital is Ex.PW1/9, discharge summary of Sir Ganga Ram Hospital is Ex.PW1/10, bills are Ex.PW1/11 collectively and Ex.PW1/12 (colly), disability certificate is Ex.PW1/13 and the certificate issued by Dr. Rajiv Parakh, Medanta Hospital is Ex.PW1/14. PE was closed on 19.7.2014.
9. On behalf of Gateway Rail Freight Ltd. Shri Anubhav Joshi was examined as R5W1. He deposed that he had been authorized by the company vide authority letter dated 18.7.2014 which is Ex.R5W1/1 to depose in the case. He had brought the original insurance policy No.40689643 of IFFCO Tokio General for the period 16.1.2009 till 15.1.2010 for the vehicle bearing No.HR55G4991 and the same is Ex.R5W1/2. He also proved the National Permit for the vehicle No.HR55G4991 and the same is Ex.R5W1/3 and the original RC of the vehicle which is Ex.R5W1/4. RE was closed on 27.8.2014.
10. I have heard the Learned Counsel for the petitioner as well as the Learned Counsels for the respondents No.3, 4, 6 and 7 and perused the Suit No. 228/14 Page no. 12 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
record. Written synopsis was also filed on behalf of the petitioner which I have perused. The petitioner was also examined on 22.9.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
11. My findings on the specific issues are as under:
Issue No. 1
12. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
Suit No. 228/14 Page no. 13 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
(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 death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
13. The case of the petitioner is that on 18.05.2009 at about 4.30 p.m when he was traveling by a Tour and Travel bus bearing registration No.RJ07 PA0007 from Bikaner, Rajasthan to Delhi soon after Rohtak City, on Rohtak bypass itself, near IMT, the driver of the bus due to his rash, careless and Suit No. 228/14 Page no. 14 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
negligent driving and at the time of overtaking other vehicles hit a container, bearing registration No.HR55G4991 from the front, which was coming from its own legitimate lane. It was averred that the driver of the container immediately died on the spot. It was averred that it was even disclosed from the FIR itself that the driver was requested to drive carefully and slowly by some passengers from the bus as he was driving in a very harsh, careless and negligent manner but he did not listen and care about the passengers' life and safety. It was averred that immediately thereafter the petitioner sustained a number of injuries on his body specially on his lower portion and immediately became unconscious. It was averred that the accident took place due to the rash and negligent driving by the driver of the bus. By way of amendment it was also sought to be added that if the driver of another offending vehicle i.e. truck bearing No.HR55G4991 took extra care, the accident might have been avoided and there was clear contributory negligence on the part of both the offending vehicles. It was stated that Shri Jagdish s/o Beduram Kaum Shayami, father of one of the passengers Mr. Vijay lodged an FIR with respect to the accident being FIR No.165/2009 in Police Station Sampla Distt Rohtak, Haryana dated 18.5.2009 against the driver of the bus under sections 279/337/304A IPC. In paras 2 to 6 of his affidavit Ex.PW1/A the petitioner had reiterated the mode and manner of the accident as stated in the claim petition. He stated that the container also did not take care to avoid the accident and as such the container was also liable on account of contributory negligence/ joint liability. He also stated that the said accident may have been Suit No. 228/14 Page no. 15 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
avoided if the driver of the container had taken care.
14. The petitioner has placed on record certified copy of the criminal record Ex.PW1/7 (colly) consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of DD; copy of MLC and post mortem report, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending bus and the container, copy of DL of the respondent No.5 (since expired) copy of RC of the bus, copy of order on the application for release of the bus on superdarinama as also the container, copy of DL of the respondent No.1 and copies of photographs. As per the FIR No.165/2009 Police Station Sampla Distt Rohtak, Haryana under sections 279/337/304A IPC the case was registered on the basis of complaint of Shri Jagdish, father of one of the passengers wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/337/338/304A IPC.
15. The respondents No.1 to 3 who are the driver, owner and the tour operator of the offending bus had not filed the written statement nor appeared to crossexamine PW1 and were proceeded exparte. The driver of the container had expired in the accident. Written statement was filed on behalf of the owner of the container - respondent No.6 averring that the truck bearing registration No.HR55G4991 belonging to the respondent No.6 did not cause the unfortunate incident and there was no negligence on the part of the driver Suit No. 228/14 Page no. 16 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
of the respondent No.6 as he was driving in his own lane as per the safety norms. It was stated that a bare perusal of even the FIR of the incident reveals that the truck was in its own lane and there was no over speeding or lane changing on the part of the vehicle of the respondent No.6. It was stated that the truck of the respondent No.6 was being driven by one Shri Rajesh Kumar who infact suffered serious injuries and unfortunately the said injuries proved to be fatal and caused his untimely demise. It was averred that the driver of the respondent No.6 was driving the vehicle in the most cautious manner, neither he was drunk nor he violated any other traffic rules and his vehicle was also at normal speed. It was averred that the driver of the bus through which the petitioner was traveling was rash and negligent and the reckless driving by the driver resulted into the unpleasant situation and the accident occurred. It was averred that the driver of the bus attempted to overtake by over speeding and changing lanes in which process the bus hit the truck of the respondent No.6 which resulted into the unfortunate incident. It was averred that the bus hit the truck/ trailer of the respondent No.6 in which unfortunate incident the driver of the truck lost his life. It was admitted that the truck of the respondent No.6 was being driven in its own lane and the only cause of the unfortunate accident was the rash and negligent act of the bus driver. On behalf of the respondent No.6 (5) Gateway Rail Freight Ltd. R5W1 was examined and during crossexamination by the learned counsel for the petitioner R5W1 admitted that the container HR55G4991 was of their company and Shri Rajesh Kumar was the driver of the vehicle in question. He Suit No. 228/14 Page no. 17 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
admitted that as per the document the said container met with the accident on 18.5.2009. Thus R5W1 had admitted that the container was of their company and that Shri Rajesh Kumar was the driver of the same and that as per the document the container met with the accident on 18.5.2009. However, it is the case of the respondent No.6 (5) that there was no negligence on the part of the driver of the container and the accident had taken place due to the negligence on the part of the driver of the bus.
16. During crossexamination by the learned counsel for the respondent No.4 PW1 stated that he was going to Delhi from his village Shri Dungarh (Distt Bikaner) by bus. He stated that he had not seen exactly how the accident had taken place but the bus had hit against the container traulla. He stated that he had placed on record the ticket of the bus. He could not say due to whose negligence the accident had taken place. He stated that his statement was not recorded by the police after the accident. He could not admit or deny the suggestion that the accident had taken place due to the negligence of the container traulla. During crossexamination by the learned counsel for the respondent No.7 PW1 could not say if the accident had taken place due to the negligence of the container or the bus driver. Thus PW1 stated that he was going to Delhi from his village Shri Dungarh (Distt Bikaner) by bus. He stated that he had placed on record the ticket of the bus. It is pertinent that in the original claim petition that was filed by the petitioner it was stated that the driver of the bus due to his rash, careless and negligent driving Suit No. 228/14 Page no. 18 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
and at the time of overtaking other vehicles hit a container, bearing registration No.HR55G4991 from the front, which was coming from its own legitimate lane and that it was even disclosed from the FIR itself that the driver was requested to drive carefully and slowly by some passengers from the bus as he was driving in a very harsh, careless and negligent manner but he did not listen and care about the passengers' life and safety. However during crossexamination PW1 had stated that he had not seen exactly how the accident had taken place but the bus had hit against the container traulla though even during crossexamination he stated that the bus hit against the container traulla. He could not say due to whose negligence the accident had taken place and he could not admit or deny the suggestion that the accident had taken place due to the negligence of the container traulla and he could not say if the accident had taken place due to the negligence of the container or the bus driver. It is significant that the FIR was registered against the respondent No.1 only and further a perusal of the site plan also shows that it was the bus which had gone towards the lane of the container and hit the container.
17. The learned counsel for the respondent No.4 had argued that it was a case of composite negligence and even the petitioner by way of amendment to the petition had tried to contend that if the driver of the container was cautious the accident could have been avoided. However from the material which is there on record there is nothing to attribute any negligence to the driver of the Suit No. 228/14 Page no. 19 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
container/truck. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have also not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record or to show that the accident had taken place also due to the negligence of the driver of the container. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/337/338/304A IPC and there is nothing to show that any complaint was made by the respondent No.1 against his wrong implication in the case. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents No.1 to 4 have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents No.1 to 4 to disprove the particulars of the accident or the involvement of vehicle No.RJ07PA0007. While container No.HR55G4991 was also involved in the accident clearly the fault was of the respondent No.1 i.e. the driver of the bus and there is nothing to show any negligence on the part of the driver of the container or to show that the present is a case of composite negligence. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
Suit No. 228/14 Page no. 20 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
18. It was stated that due to the accident the petitioner sustained a number of injuries on his body specially on his lower portion and immediately became unconscious. The medical documents in respect of the petitioner are on record which show the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents. Issue No.2
19. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
Suit No. 228/14 Page no. 21 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors. MEDICINES AND MEDICAL TREATMENT
20. The case of the petitioner is that due to the accident on 18.5.2009 he sustained a number of injuries on his body specially on his lower portion and immediately became unconscious. It was averred that the petitioner had sustained temporary injuries and could not walk and work properly and was undergoing medical treatment. It was averred that the petitioner was admitted in Sir Ganga Ram Hospital from 18.5.2009 to 30.5.2009 and bill of Rs. 2,84,095/ was raised out of which Rs.84,095/ were paid by the petitioner and Rs.2,00,000/ was paid by 'The Healthcare Service P. Ltd.'; he was again admitted from 17.6.2009 to 20.6.2009 in City Hospital and total bill of Rs. 53,867.20 was raised which was paid by the petitioner himself; he was again admitted from 16.7.2009 to 16.7.2009 in Sir Ganga Ram Hospital and bill of Rs. 35,494/ was raised and paid by the petitioner himself and as such the petitioner had paid Rs.3,73,456/ in aggregate. It was averred that the medical treatment of the petitioner was still continuing at home and at clinics and he had spent more than Rs.75,357/ on purchase of medicines and treatment as well as on special diet etc. Continuing expenses on medical treatment for the period 23.7.2009 to 6.10.2010 were computed as Rs.1,22,540/. It was averred that the petitioner had undergone and was still continuing to have physical pain and mental agony and was suffering from temporary disability due to which he could not work and walk properly and he was still on bed rest due to which he had not been attending his office from the date of the accident. It Suit No. 228/14 Page no. 22 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
was averred that the petitioner had suffered irreparable loss and was still facing various repercussions of mental and physical shock occurred due to the accident. It was averred that the petitioner and his family members had to meet the medical expenses with great hardship and apart from the hospital expenses the other family members had to travel from Bikaner to Delhi and vice versa. It was averred that due to the accident the petitioner had been suffering long mental agony and harassment. It was averred that the petitioner was also suffering from inferiority complex as both physically and mentally he had become weak. It was averred that the petitioner was still undergoing medical treatment which was very expensive and the major part of his savings and salary was spent on purchasing medicines and the petitioner solely depended on his savings. It was averred that the petitioner had no extra financial support and he was living on his own and he had already suffered economically, mentally and physically or was likely to suffer due to the alleged accident. It was averred that the petitioner had lost expectation of life i.e. on account of injury the normal longevity of life was shortened and he was facing inconvenience, hardship, discomfort, disappointment, frustration and stress in life.
21. The petitioner in paras 4, 9 and 11 of his affidavit Ex.PW1/A had deposed to that effect. He stated that he sustained multiple injuries all over the body especially on his lower portion and due to the injury, he immediately became unconscious. He stated that the total amount of the bills was of Rs.
Suit No. 228/14 Page no. 23 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
5,71,353/. He stated that from 13.10.2010 to 4.6.2014 amount of Rs.88,232/ had been also incurred and as such the total amount spent till date comes to Rs.6,59,585/. He stated that as per the disability certificate, he was facing 41% disability and for the said reason he was not able to enjoy the life naturally and was facing extreme hardship on account of the rash and negligent driving of the offending vehicles. Copy of MLC dated 18.5.2009 prepared by hospital is Ex.PW1/9, discharge summary of Sir Ganga Ram Hospital is Ex.PW1/10, bills are Ex.PW1/11 collectively and Ex.PW1/12 (colly), disability certificate is Ex.PW1/13 and the certificate issued by Dr. Rajiv Parakh, Medanta Hospital is Ex.PW1/14. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. The documents placed on record also show that the petitioner had sustained left anterior and posterior cruciate leg injury with left popliteal arterial injury. The documents also show that he was admitted in hospital from 18.5.2009 to 30.5.2009 and for the other periods as stated by him. Thus the injuries were serious in nature. The petitioner had also got disability due to the injuries sustained in the accident and as per the disability certificate Ex.PW1/13 the petitioner was a case of post traumatic stiffness at left knee and ankle and he had permanent physical impairment of 41% in relation to left lower limb. Thus the petitioner had got disability due to the accident.
22. During crossexamination by the learned counsel for the respondent No.4 PW1 stated that he had received reimbursement of Rs.2 lacs Suit No. 228/14 Page no. 24 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
from Mediclaim and he did not receive reimbursement for about Rs.44.5 lacs. He stated that he had placed on record bills showing medical expenses of Rs. 44.5 lacs. He stated that he had also placed on record the prescription of the doctor. He denied the suggestion that the document Ex.PW1/14 was forged and fabricated. He denied the suggestion that it was deliberately received from the doctor to extract more money for future as an after thought. Thus PW1 stated that he had received reimbursement of Rs.2 lacs from Mediclaim and the documents placed on record also show the same. He stated that he did not receive reimbursement for about Rs.44.5 lacs and that he had placed on record bills showing medical expenses of Rs.44.5 lacs as also the prescription of the doctor. The medical record along with the bills have been placed on record (though some are photocopies) which show the expenditure on the treatment and medical expenses. The petitioner had placed on record one certificate issued by Dr. Rajiv Parakh, Medanta Hospital which is Ex.PW1/14 stating that the petitioner would require life long follow up but nothing much turns on the same and the same has also not been got proved through any witness nor is it an estimate of future expenses. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had filed bills for an amount of Rs.4,59,584/ approximately and a further amount of Rs.2 lacs was reimbursed already. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would incur some expenses even subsequently. Accordingly an amount of Rs.5,00,000/ is awarded towards medical treatment Suit No. 228/14 Page no. 25 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
and expenses including the amount of the bills and towards future medical expenses.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
23. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (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 18.5.2009 he sustained a number of injuries on his body specially on his lower portion and immediately became unconscious. It was averred that the petitioner had sustained temporary injuries and could not walk and work properly and was undergoing medical treatment. It was averred that the petitioner was admitted in Sir Ganga Ram Hospital from 18.5.2009 to 30.5.2009; he was again admitted from 17.6.2009 to 20.6.2009 in City Hospital; he was again admitted Suit No. 228/14 Page no. 26 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
from 16.7.2009 to 16.7.2009 in Sir Ganga Ram Hospital and the medical treatment of the petitioner was still continuing at home and at clinics. It was averred that the petitioner had undergone and was still continuing to have physical pain and mental agony and was suffering from temporary disability due to which he could not work and walk properly and he was still on bed rest due to which he had not been attending his office from the date of the accident. It was averred that the petitioner had suffered irreparable loss and was still facing various repercussions of mental and physical shock occurred due to the accident. It was averred that due to the accident the petitioner had been suffering long mental agony and harassment and also from inferiority complex as both physically and mentally he had become weak. It was averred that the petitioner had no extra financial support and he was living on his own and he had already suffered economically, mentally and physically or was likely to suffer due to the alleged accident. It was averred that the petitioner had lost expectation of life i.e. on account of injury the normal longevity of life was shortened and he was facing inconvenience, hardship, discomfort, disappointment, frustration and stress in life. PW1 stated that he sustained multiple injuries all over the body especially on his lower portion and due to the injury, he immediately became unconscious. He stated that as per the disability certificate, he was facing 41% disability and for the said reason he was not able to enjoy the life naturally and was facing extreme hardship on account of the rash and negligent driving of the offending vehicles. The MLC of the petitioner is on record which shows the injuries sustained by the Suit No. 228/14 Page no. 27 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
petitioner. The documents placed on record also show that the petitioner had sustained left anterior and posterior cruciate leg injury with left popliteal arterial injury. The documents also show that he was admitted in hospital from 18.5.2009 to 30.5.2009 and for the other periods as stated by him. Thus the injuries were serious in nature. The petitioner had also got disability due to the injuries sustained in the accident and as per the disability certificate Ex.PW1/13 the petitioner was a case of post traumatic stiffness at left knee and ankle and he had permanent physical impairment of 41% in relation to left lower limb. Thus the petitioner had got disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2009, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
24. The petitioner was about 31 years of age and it was so stated in the claim petition. Copy of the voter identity card of the petitioner is Ex.PW1/1 as per which the age of the petitioner was 24 years as on 1.1.2002. As such he would have been more than 31 years old on the date of the accident i.e. 18.5.2009. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.30,000/ (Rs.Thirty Thousand only) for loss of amenities of life. The petitioner cannot however be Suit No. 228/14 Page no. 28 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
held to be entitled to any amount towards loss of expectation of life or towards disfiguration. The petitioner would however be entitled to an amount of Rs. 50,000/ for the disability sustained.
CONVEYANCE AND SPECIAL DIET
25. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was admitted in Sir Ganga Ram Hospital and he was also treated at City Hospital and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.15,000/ (Rs.Fifteen Thousand only) would be just and proper towards conveyance charges.
26. 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.
Suit No. 228/14 Page no. 29 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
27. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.12,000/ is awarded towards attendant charges.
LOSS OF INCOME
28. It is the case of the petitioner that he was working as Senior Executive - North with M/s Kothari Metals Limited and was earning Rs.26,500/ p.m. as on the date of the accident and he was paying Rs.41,821/ annually as income tax. It was averred that the petitioner had sustained temporary injuries and could not walk and work properly and was undergoing medical treatment. It was averred that the petitioner had undergone and was still continuing to have physical pain and mental agony and was suffering from temporary disability due to which he could not work and walk properly and he was still on bed rest due to which he had not been attending his office from the date of the accident. It was averred that the petitioner had lost income of Rs.1,19,250/ from the date of the accident. It was averred that the petitioner had suffered irreparable loss and was still facing various repercussions of mental and physical shock occurred due to the accident. It was averred that the petitioner had a meritorious profile and was very hard working, ambitious and confident but after the accident he had lost his confidence and felt nervous appearing in Suit No. 228/14 Page no. 30 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
departmental examinations that are held periodically with the effect that his progressive career had been ruined. It was averred that the petitioner was also suffering from inferiority complex as both physically and mentally he had become weak. It was averred that the petitioner had no extra financial support and he was living on his own and he had already suffered economically, mentally and physically or is likely to suffer due to the alleged accident. The petitioner in para 11 of his affidavit Ex.PW1/A had deposed to that effect. He stated that as per the disability certificate, he was facing 41% disability and for the said reason he was not able to enjoy the life naturally and was facing extreme hardship on account of the rash and negligent driving of the offending vehicles. Copy of payment voucher dated 27.4.2009 of Rs.24,000/ issued by M/s Kothari Metals Ltd to him is Ex.PW1/5, ITR pertaining to the year 2009 i.e. the year of accident is Ex.PW1/6 and disability certificate is Ex.PW1/13.
29. During crossexamination by the learned counsel for the respondent No.4 PW1 stated that at the time of the accident he was working with Kothari Metals Ltd. He had placed on record the employment paper. Thus PW1 had reiterated that at the time of the accident he was working with Kothari Metals Ltd. The petitioner has placed on record one payment voucher Ex.PW1/5 showing the payment made to the petitioner for the month of April, 2009. However no witness has been produced from the said company to prove that the petitioner was indeed working with them or to prove the salary of the petitioner at the time of the accident. The petitioner has also placed on record Suit No. 228/14 Page no. 31 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
ITR for the assessment year 20082009 which was filed in March, 2009 which shows his gross total income as Rs.3,92,966/ on which tax of Rs.34,932/ was paid. However if the same is seen then the income of the petitioner would be more than Rs.30,000/ p.m. During examination by the Tribunal the petitioner stated that he is 35 years old at present. He stated that at the time of the accident he was working with Kothari Metals and was earning Rs.24,000/ p.m. He stated that at present he did not have a fixed job and he was working on part time basis in Kothari Metals and was earning Rs.10,000/ to Rs. 15,000/ p.m. Thus the petitioner had stated that he was working with Kothari Metals and that he was earning Rs.24,000/ p.m. which is also borne out by Ex.PW1/5. However the petitioner has filed the the ITR for only one year and not for the subsequent period. Considering the facts and circumstances of the case the income of the petitioner at the time of the accident is taken on the basis of Ex.PW1/5 which shows the payment to the petitioner for the month of April, 2009 and the accident had taken place in May, 2009. However for computing the income the amount towards conveyance allowance of Rs.1800/ and towards meal expenses of Rs.1500/ cannot be included and as such the income of the petitioner would be taken as Rs.20,900/ p.m. It is settled law that the actual income to be considered is the income after the deduction of income tax. Accordingly the actual income of the petitioner after deducting amount towards income tax is taken as Rs.19,000/ p.m. i.e. Rs.2,28,000/ p.a. Suit No. 228/14 Page no. 32 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
30. The petitioner has also not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work. The petitioner has also not produced any witness who could prove for how much period the petitioner remained on leave on account of the injuries sustained in the accident. During examination by the Tribunal the petitioner stated that at present he did not have a fixed job and he was working on part time basis in Kothari Metals and was earning Rs.10,000/ to Rs.15,000/ p.m. Thus the petitioner had stated that at present he did not have a fixed job but the petitioner has not placed on record any document to show that his services were terminated on account of the injuries sustained in the accident. He has also not placed anything on record to show that thereafter he was working only on part time basis in Kothari Metals and in fact even the ITR for only one year has been filed and not for the subsequent period. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.55,000/ consolidated on account of loss of income.
31. It is the case of the petitioner that he had sustained 41% permanent physical disability in relation to the left lower limb. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the Hon'ble Supreme Court has held that :
Suit No. 228/14 Page no. 33 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal has to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Suit No. 228/14 Page no. 34 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings.
32. The petitioner has not produced any doctor in the witness box who could depose about the effect of the disability on the earning capacity of the petitioner. The petitioner had sustained permanent physical disability and as per the disability certificate the petitioner was opined to be a case of post traumatic stiffness at left knee and ankle and he had 41% permanent physical impairment in relation to his left lower limb. Clearly the same would have effect on the working capacity of the petitioner. The learned counsel for the respondent No.4 had argued that there was no financial loss to the petitioner Suit No. 228/14 Page no. 35 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
as he was still working with the same firm and he was going for his duties. It is true that the petitioner had stated that he was working with Kothari Metals though he had tried to contend that he was now working on part time basis but clearly the disability would have effect on the working capacity of the petitioner. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 20% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 20% of Rs.2,28,000/ i.e. Rs.45,600/ approximately p.a.
33. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable shall be of 16 as the petitioner was more than 31 years old on the date of the accident. As regards the future prospects in Rajesh and Ors. v Rajbir Singh and Ors. 2013 (6) SCALE 563 the Hon'ble Supreme Court held as under:
"11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in Suit No. 228/14 Page no. 36 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
case the deceased was in the age group of 40 to 50 years."
12.In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those selfemployed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
As his age was less than 40 years the petitioner would be entitled to an increase of 50% in his income for award of compensation towards loss of earning capacity. After applying the multiplier of 16, the petitioner shall be entitled to loss of income i.e. Rs.45,600/X16 = Rs.7,29,600/ + 50% towards future prospects i.e. Rs.7,29,600/ + Rs.3,64,800/ = Rs.10,94,400/ (rounded off to Rs.10,94,000/).
Thus the total amount towards loss of income would be Rs.11,49,000/. The total compensation is assessed as under:
Medicines and Medical treatment Rs.5,00,000/ Pain and suffering Rs.50,000/ Loss of Amenities of life Rs.30,000/ Compensation for disability Rs.50,000/ Conveyance Rs.15,000/ Suit No. 228/14 Page no. 37 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors. Special Diet Rs.10,000/ Attendant charges Rs.12,000/ Loss of Income Rs.11,49,000/ TOTAL Rs.18,16,000/
Thus the total compensation would be Rs.18,16,000/.
RELIEF
34. The petitioner is awarded a sum of Rs.18,16,000/ (Rs.Eighteen Lacs Sixteen Thousand only) along with interest @ 9% per annum including, interim award, if any already passed against the respondents and in favour of the petitioner. However considering the facts and circumstances of the case and that issues were framed as far back as 30.10.2010 but the witness was examined only in July, 2014 though various applications were filed in between, it is directed that the petitioner shall not be entitled to any interest for the period from 30.10.2010 till 2.7.2014. As such the petitioner shall be entitled to interest for the period from the date of filing of the claim petition till 30.10.2010 and thereafter from 2.7.2014 till its realization.
35. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash v. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view Suit No. 228/14 Page no. 38 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
of the directions contained in the above judgment the award amount is to be disbursed as follows:
a) 30% of the amount be released to the petitioner by transferring it into his savings account and the remaining amount out of his share be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
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.
b)The respondent No.4 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 Sanjay Lodha within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioners. In case of default, the respondent No.4 shall be liable to pay further interest @ 12% per annum for the period of delay.
Suit No. 228/14 Page no. 39 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
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.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the savings account of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate his identity.
g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass book shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
Suit No. 228/14 Page no. 40 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
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.
36. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
37. The respondent No.1 is the driver, the respondent No.2 is the owner, the respondent No.3 is the Tour Operator and the respondent No.4 is the insurer Suit No. 228/14 Page no. 41 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
of bus bearing No.RJ07PA0007 i.e. the offending vehicle. Clearly the tour operator cannot be held liable. The respondent No.5 was the driver of truck bearing No.HR55G4991 and he has already expired. The respondent No.6 is the owner and the respondent No.7 is the insurer in respect of the truck. It has already been held that there was nothing to attribute any negligence to the respondent No.5 i.e. the driver of the container/ truck. Accordingly no liability can be fixed on the respondents No.5 (since expired and deleted) and respondents No.6 and 7. Thus the respondents No.1, 2 and 4 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.4. Respondent No.4 i.e. The New India Assurance Co. Ltd. being the insurance company in its reply had stated that the alleged offending vehicle No.RJ07PA0007 was insured in the name of Tola Ram with the respondent No.4 vide policy No.331302/31/08/01/00001076 valid from 10.6.2008 to 9.6.2009. There is no evidence on behalf of the respondent No.4 to show that there was any violation of the rules and terms of policy by the respondents No. 1 and 2. Hence, the respondent No.4 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.4 being the insurer is directed to deposit the award amount in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest as directed in para 34 of the judgment cum award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
Suit No. 228/14 Page no. 42 of 43 Sanjay Lodha v Chunaram Dhatarwal & Ors.
38. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.4 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 19.03.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House. File be consigned to record room.
Announced in open court
on this 18th day of December, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 228/14 Page no. 43 of 43
Sanjay Lodha v Chunaram Dhatarwal & Ors.