Delhi District Court
Rohitasav Singh @ Rohtas vs . Yatender Parkash & Ors. on 7 November, 2013
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Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. 205/13
Unique case ID : 02406C0094202011
1. Rohitashv Singh @ Rohtas
S/o Sh. Amar Singh Tanwar
R/o H. No. 57 & 68, Village Nimbas
P.O: Udamandi, Tehsil Buhana
District Jhunjhunu
Rajasthan.
...... Petitioner
Versus
1. Yatender Parkash
S/o Sh. Hari Ram Bhardwaj
R/o HC7, Traffic Police Line
Mother Tresha, Crecent Marg
New Delhi.
And also at :
H. No. 2268/31, Anand Garden
near Railway Station Gurgaon
P.O Gurgaon, Haryana.
2. TATA AIG General Insurance Company Ltd.
Ahura Centre, 4th Floor, 92 Maakali Caves Road
Andheri Mumbai400093
Through its Divisional Office/Head Operations
Petition No. : 205/13 Page No. 1 of 34
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Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
3. S. N. Sikka ( Recorded owner of the offending car)
R/o B3/2 Vasant Vihar, New Delhi
4. Auto Experts ( Deliverer of the Offending Car)
C/o C 76 Mahavir Vihar, Sector 1, Dwarka, New Delhi.
...... Respondents
Date of Institution : 29.03.2011
Date of reserving of judgment/order : 17.10.2013
Date of pronouncement : 07.11.2013
J U D G M E N T :
1. Rohitsav Singh filed the petition U/s 166 & 140 of the Motor Vehicle Act for claiming compensation of Rs. 31,55,775/ for the injuries sustained by him in the accident which occurred on 02.05.10 at about 11.40 PM at DelhiGurgaon Road, NH8, Service Road ahead of Rajokari Fly Over near Rajasthan Petrol Pump, Vasant Kunj South, New Delhi.
2. Briefly, the facts are that on the aforesaid date and time, the petitioner alongwith Pushpak Yadav and Surender was on traffic regulating duty at NH8, Service Road before Rajokari Flyover, near Rajasthan Petrol Pump, Vasant Kunj, South, New Delhi. He was at a safe place on a covered drain and observing the movement of traffic. On seeing the respondent no. 1, he Petition No. : 205/13 Page No. 2 of 34 3 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. gave signal to control his vehicle but respondent no. 1 while driving his Fiat Polio Car bearing no. DL9CC9391 rashly and negligently came from Mahipalpur side and hit his left foot. He fell down and sustained injuries. Pushpak Yadav and Surender Singh caught the driver of the car. Petitioner was taken to Paras Hospital Gurgaon and then shifted to Trauma Center, AIIMS. A case was registered vide FIR No. 126/10 at the police station Vasant Kunj ( South). He was 25 years of age. He was Traffic Marshal and employed with THREE ESS SERVICES Company. He used to get a salary of Rs. 7306/ per month. His left leg was amputated below knee. He became unfit for the post of Traffic Marshal due to amputation of leg. Respondent no. 1 was the registered owner of the car and it was insured with respondent no. 2 in the name of respondent no. 3. Respondent no. 4 was the deliverer of the offending car.
3. Notice of the petition was given to the respondents.
4. Respondent no. 1 in his written statement stated that he was driver and registered owner of offending vehicle. He was having valid driving licence. He did not cause the accident and it had taken place due to negligence of the petitioner. He denied the averments made in the petition. He stated that Petition No. : 205/13 Page No. 3 of 34 4 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. the vehicle bearing no. DL9CC9391 was insured with TATA AIG General Insurance Company Ltd vide policy no. 015045433901 for the period from 04.05.09 to 03.05.10.
Petitioner filed the replication to the written statement of respondent no. 1 wherein he denied all the preliminary objections taken by the respondent no. 1.
5. Respondent no. 2 filed its written statement alleging that the respondent no.
1 was not the insured person as per its record. The offending vehicle was insured in the name of Mr. S. N. Sikka/respondent no. 3 at the time of accident. It also denied the averments made in the petition. It however admitted that the offending vehicle was insured with it vide above policy.
6. Respondent no. 3 and 4 did not appear and they were proceeded exparte vide order dated 09.08.2011 and 13.02.12 respectively.
7. Vide order dated 18.09.12, following issues were framed:
1. Whether the injured Rohitsav Singh @ Rohtas had received injuries in Motor Vehicle Accident due to rash and negligent driving of vehicle bearing no. DL9CC9391 by respondent no. 1,owned by him as well as by recorded owner respondent no. 3 /4 and insured with Petition No. : 205/13 Page No. 4 of 34 5 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
respondent no. 2 on 02.05.10? ........OPP.
2. If issue no. 1 is proved in affirmative, whether petitioner is entitled for any compensation, if yes, from whom and to what amount?
3. Relief.
8. To substantiate his claim, petitioner examined Dr. Pankaj Dawar, M. Ch Neurosurgery, AIIMS as PW1, Sh. Himmat Singh as PW2, PW3 Pushpak Yadav, Col. Ashok Suri, partner in THREE ESS SERVICES as PW4, Sh. Subhash Singh as PW5 and himself as PW6.
9. Respondents did not examine any witness.
10. I have heard the arguments advanced by Sh. Ram Kumar, Ld. counsel for the petitioner, Ms. Sunita Bhaskar for respondent no. 1, Ms. Vandana Kahlon for respondent no. 3 and gone through the entire evidence on record.
11. It was contended by Ld. counsel for the petitioner that petitioner was 25 years of age. He was traffic marshal. He used to control and regulate traffic. He was on duty when the accident took place. His left leg below knee was amputated after the accident. He has suffered 60% permanent impairment in Petition No. : 205/13 Page No. 5 of 34 6 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. relation to his left lower limb. He had to resign from his existing job due to amputation of his left leg. He cannot do job any more. His family was totally dependent upon him.
12. Ld. counsel for the respondent no. 2 on the contrary contended that the petitioner was traffic marshal and the employee of THREE ESS SERVICES. He being an employee and insured person, under the Employees State Insurance Act 1958 ( ESI Act), he is entitled to the benefit of Section 46 (1)
(c) of the ESI Act and the claim of the petitioner under Motor Vehicle is barred by the virtue of Section 53 of ESI Act. She further contended that PW1/doctor was neither the author of document Ex. PW1/1 nor the treating doctor. Petitioner was employed on contract basis so he is not entitled to future prospects. His conveyance bills of Rs. 32,000/ are not connected to the visits made to the hospital during his treatment.
13. I have considered the submissions and gone through the record. My findings on the issues are as follows: I S S U E NO.1
14. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and Petition No. : 205/13 Page No. 6 of 34 7 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
15. PW6 has stated that on 02.05.10 at about 11.40 PM, he alongwith Pushpak Yadav and Surender was on traffic regulating duty at NH8, Service Road before Rajokari Flyover, near Rajasthan Petrol Pump, Vasant Kunj, South, from side of Delhi to Gurgaon Road. He was regulating the traffic on foot by standing at a safe place on covered Nali and observing the movement of traffic. On seeing the respondent no. 1 coming from Mahipalpur side, he gave signal to control his vehicle but respondent no. 1 while driving his Fiat Polio Car bearing no. DL9CC9391 rashly and negligently hit his left foot. He sustained injuries. His colleagues Pushpak Yadav and Surender Singh caught the driver of the car. He was taken to Paras Hospital and then shifted Petition No. : 205/13 Page No. 7 of 34 8 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. to Trauma Center, AIIMS. A case was registered vide FIR No. 126/10 at the police station Vasant Kunj ( South). The police recorded his statement. He relied upon the certified copy of DAR filed by SHO, PS Vasant Kunj, Ex. PW6/E. Perusal of these documents reveals that the case was registered on the statement of Pushpak Yadav who was alongwith the petitioner on traffic regulating duty. He also appeared in the witness box as PW3. He reiterated the facts as stated in the FIR and deposed on the lines of PW6. In his crossexamination, PW3 denied that the accident had taken place due to negligence of the petitioner/PW6.
16. On considering the testimony of PW3, PW6 and the documents placed with the DAR, I am of the view that the accident had occurred due to rash and negligent driving of Fiat Polio Car bearing no. DL9CC9391 by the respondent no.1 resulting injuries on the person of Rohitsav Singh. Record shows that the vehicle was registered in the name of respondent no.1. The offending vehicle was insured with respondent no. 2 in the name of respondent no. 3. Respondent no. 4 was deliverer of the car.
17. Issue no.1 is accordingly decided in favour of the petitioner and against the respondents.
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Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. I S S U E No. 2
18. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ;
(iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened;(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
19. PW6 has stated that from the spot he was taken to Paras Hospital where his MLC was prepared. Thereafter, he was shifted to JPN Trauma Center, AIIMS. As per discharge summary Ex. PW1/D ( colly) , he remained Petition No. : 205/13 Page No. 9 of 34 10 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. admitted in the hospital from 03.05.10 to 17.05.10. During this period, he was operated two times. He sustained Compound Grade III C Communited Fracture both bone leg left. His left leg had to be amputated during the operative procedure. He suffered 60 % permanent impairment in relation to his left leg. PW1 proved his disability certificate Ex. PW1/1. Looking into the injuries, discharge summary and facts and circumstances of the case, I find that the petitioner sustained severe injuries. Although no medical bills were filed by him but injuries were such that he might have incurred expenses on his treatment. I therefore, award Rs. 10,000/ to the petitioner towards medical expenses.
COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
20. Testimony of PW6 shows that he suffered Compound Grade III C Communited Fracture both bone leg left. His left leg was amputated. He has suffered 60 % permanent impairment in relation to his left leg. He was a young man and had been doing the work of traffic marshal. Now, he has become dependent on others. He remained hospitalised for about 15 days and was operated on his leg. He remained confined to bed for about 06 months. The injuries had given him lot of pain and sufferings. In the case of Petition No. : 205/13 Page No. 10 of 34 11 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Raj Kumar Vs. Ajay Kumar in Civil Appeal No. 8981/2010 decided on 18.10.10 the Supreme Court dealt with the principles relating to compensation in injury cases. It was held that the award must be just which means that compensation should to the extent possible fully and adequately restore the claimant to the position prior to the accident. Keeping in view all these circumstances, I award a sum of Rs. 1,00,000/ to the petitioner towards pain and sufferings and enjoyment of life. COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
21. PW6 has stated that he spent Rs.10,000/ on special diet, Rs. 32,775/ on conveyance and Rs. 36,000/ on attendant. PW2 Himmat Singh stated that he used to supply milk. He filed the receipt Ex. PW2/B amounting to Rs.
4500/. PW6 filed the the receipt of Rs. 36,000/ for the month of May 2010 to October 2010 for the payment made to attendant/Bhawani Singh. Considering the fact that the petitioner was 25 years of age and suffered from amputation of Left Lower Limb and for recovery, he always required rich diet, I award Rs. 15,000/ to the petitioner towards Special Diet. In this case he followed up his treatment for long. PW5 Subhash Singh has stated that petitioner used to hire his vehicle bearing no. HR614993 for taking him and Petition No. : 205/13 Page No. 11 of 34 12 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. his parents from his village to AIIMS Trauma Center and for going to various places. He filed the conveyance charges Ex. PW5/B of Rs. 32,775/. Keeping in view medical records and facts of the case, I award Rs. 20,000/ to the petitioner towards conveyance. Facts and circumstances show that he remained bed ridden for 06 months. Now, he requires Artificial Limb for his mobility. He might have not been able to perform his ordinary pursuits without the help of attendant. Taking the attendant charges @ Rs. 4,000/ p.m., the compensation on account of attendant charges comes to 6 x 4,000 = Rs. 24,000/. I therefore, award Rs. 24,000/ to the petitioner towards Attendant Charges.
COMPENSATION FOR LOSS OF INCOME AND FUTURE LOSS OF INCOME :
22. PW6 has stated that he was Traffic Marshal. He had been working with THREE ESS SERVICES Company and drawing a salary of Rs. 7306/ per month. PW4 Col. Ashok Suri, Partner in THREE ESS SERVICES filed salary certificate dated 25.08.10 Ex. PW4/E issued to Rohtash Singh. He also filed certificate dated 31.01.11 issued to petitioner with respect to unfit for service Ex. PW4/F, application moved by Rohtash Singh for accepting resignation Ex. PW4/G and acceptance of resignation Ex. PW4/H. He stated Petition No. : 205/13 Page No. 12 of 34 13 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
that petitioner was employed with his firm in August 2008. He was appointed on contract basis. The contract period went on increasing. After the accident, he became unfit to do the job due to amputation of his left leg below knee. In the instant case, the petitioner remained bed ridden for six months. Taking the salary as on 02.05.10 as Rs. 7306/ p.m. the loss of income is calculated as 7306x6=43,836/. I award Rs. 44,000/ to the petitioner towards Loss of Income.
23. The petitioner has 60% disability in relation to his Left Lower Limb. He was a Traffic Marshal. The job of the petitioner was such that he required continuous mobility. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands, the loss of one of the legs to the marginal farmer would be the end of the road in so far his earning capacity is concerned. But in case of person engaged in some kind Petition No. : 205/13 Page No. 13 of 34 14 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. of desk work in an office, the loss of leg may not have same effect. The loss of a leg (or for that matter the loss of any limb) to any one is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in an office would not interfere with his work/earning capacity in the same degree as in the case of marginal farmer or a cycle rickshawpuller. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343." The petitioner in the present case is of age 25 years of age. His left leg was amputated. He became unfit on amputation of his left leg as per certificate of unfitness to do the job of Traffic Marshal. The loss of earning capacity of the petitioner according to me may be as high as 60% but in no case it would be less than 50%. Thus, the compensation for loss of future earnings is computed taking the functional disability as 50%. It was held in a case of Oriental Insurance Company Ltd Vs. Vijay Kumar Mittal & Ors III ( 2007) ACC 676 that while estimating future loss of income, the court has to take into account the future prospects of the injured. Future increase in minimum wages tends to increase by 100% every ten years. Taking a multiplier of '18', adding the future prospect @ 50 % as decided by Apex Court in case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) Scale 563 and ICICI Lombard Gen. Ins. Co. Ltd Vs. Angrez Singh & Ors in MAC. 846/11 by Hon'ble High Petition No. : 205/13 Page No. 14 of 34 15 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Court, the loss of income on account of disability is calculated as 12 x (7306 + 50 % x 7306) x 18 x 50% = Rs.11,83,572/ which is rounded off to Rs. 11,84,000/. I therefore award Rs. 11,84,000/ to the petitioner towards future loss of income on account of permanent disability. COMPENSATION FOR LOSS OF AMENITIES :
24. The petitioner was 25 years of age at the time of accident. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social life. Looking into his age, injuries and facts and circumstances of the case, I award a sum of Rs. 50,000/ towards loss of amenities.
25. Thus, the total compensation awarded in favour of the petitioners is assessed as under :
a) Medical Expenses : Rs. 10,000/
b) Pain & Sufferings : Rs. 1,00,000/
c) Special Diet, Conveyance & Attendant Charges : Rs. 59,000/
e) Loss of Income : Rs. 44,000/
f) Loss of Future Income : Rs. 11,84,000/ Petition No. : 205/13 Page No. 15 of 34 16 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
g) Loss of Amenities : Rs. 50,000/
============
: Rs. 14,47,000/
Less: Interim Award vide order
dated 03.05.12. Rs. 25,000/
============
TOTAL : Rs. 14,22,000/
============
: L I A B I L I T Y :
26. As regards liability, the offending vehicle was being driven by respondent no.
1, therefore primary liability to compensate the petitioner is that of respondent no.1. Record reveals that the vehicle was registered in the name of respondent no. 1. So he becomes vicariously liable to compensate the petitioner. It is admitted position on record that the offending vehicle was insured with respondent no.2 in the name of respondent no. 3, therefore, respondent no.2 becomes contractually liable to pay the compensation towards the liability of the insured.
27. In the instant case as evident from the documents, the offending vehicle passed on many hands. On perusal of document, I find that the vehicle bearing no. DL9CC9391 was insured with TATA AIG General Insurance Petition No. : 205/13 Page No. 16 of 34 17 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Company Ltd vide policy no. 015045433901 for the period from 04.05.09 to 03.05.10. The accident took place on 02.05.10. As on date of accident, the vehicle was insured. It is true that vehicle passed on many hands but there is no denial of the fact by the insurance company that the vehicle was insured at the time of accident. Further no evidence has been brought by the Insurance Company to show that there was any breach of insurance policy by the insured or the respondent no.1 was not having Driving License. Thus, I am of the view that respondent no. 2 i.e. Insurance Company becomes contractually liable to pay the compensation towards the liability of the insured.
28. It was contended by Ld. counsel for respondent no. 2 that the petitioner was a traffic marshal and the employee of THREE ESS SERVICES. He being an employee and insured person under the Employees State Insurance Act 1958 ( ESI Act), so he is entitled to the benefit of Section 46 (1) (c) of the ESI Act and the claim of the petitioner under Motor Vehicle is barred by the virtue of Section 53 of ESI Act. In support of her contention, she placed reliance on the case of A Trehan Vs. Associated Electrical Agency and Ors., 1996 ACJ 853 (SC).
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Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
29. I have considered the submissions and gone through the relevant provisions of ESI Act 1948.
30. Section 53 of ESI Act creates bar against receiving or recovery of compensation or damages under any other law. It reads as "an insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or any other law for the time being in force or otherwise in respect of an employment injury sustained by the insured person as an employee under this Act".
31. Section 163A of Motor Vehicles Act reads as "Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the second schedule, to the legal heirs or the victim, as the case may be.
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Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
32. It was held in the case of Regional Manager New India Assurance Co.
Ltd. Vs. Vijay Balshiram Valunj Laws (KAR) 20111009 decided by the High Court of Karnataka on 24.10.2011 in MFA No. 4344 of 2007 A/W MFA No. 4901 of 2008 that from the reading of both sections, it is clear that Section 163A of the Motor Vehicles Act has been inserted w.e.f. 14.11.94 whereas Section 53 of the ESI Act was substituted w.e.f. 28.01.1968. When the provision of Section 163A of the Motor Vehicles Act says that there is no bar under any other law, the petition filed U/s 163A of the Motor Vehicles Act has to be held as maintainable, since Section 163A has been introduced much long after the provisions of Section 153 of the ESI Act therefore, in view of the Section 163A of the Motor Vehicles Act, Section 53 of the ESI Act cannot be pressed into service.
33. In the case of A Trehan (Supra), vide para 8, 9 & 10 the Hon'ble Supreme Court observed as under: 'The ESI Act was enacted with an object of introducing a scheme of health insurance for industrial workers. The scheme envisaged by it is one of compulsory State insurance providing for certain benefits in the event of sickness, maternity and employment injury to the workmen employed in or in connection with the work in factories other than seasonal factories. The ESI Act Petition No. : 205/13 Page No. 19 of 34 20 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. which has replaced the Workmen's Compensation Act 1923, in the fields where it is made applicable is far more wider than the Workmen's Compensation Act 1923 and enlarges the scope of compensation Section 38 provides that all employees in factories or establishments to which the ESI Act applies shall be insured in the manner provided in it. Under Section 39, the employer is also made liable to pay contribution under which the employee need not pay his contribution. Section 46 provides for the benefits which the insured persons, their dependants and the persons mentioned therein shall be entitled to get on happening of the events mentioned therein. Section 51A to 51D create certain fictions in favour of the employee so as to have wider coverage for him. In case of an employment injury section 46 provides periodical payments to him or to his dependants in case of his death. The Second Schedule to the ESI Act specifies the injuries deemed to result in permanent total disablement. Rule 54 of the Employees' State Insurance ( Central) rules 1950, provides the daily rate of benefit, which the employee would get if an employment injury is suffered by him. Rule 57 provides for disablement benefits. Rule 58 provides for dependent's benefits in case the injured person dies as a result of an employment injury. Rule 60 provides for the medical benefits to an insured person who ceases to be in an insured employment on account of permanent disablement. Other benefits are also conferred by the ESI Act and the Rules but it is not necessary to refer to Petition No. : 205/13 Page No. 20 of 34 21 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. them for deciding the point which arises in this case. Two other provisions in the ESI Act to which it is necessary to refer are Section 53 and 61. The present section 53 was substituted by Act No. 44 of 1966 with effect from 28.01.1968. Section 61 has been there in the Act since it came into force. It provides that when a person is entitled to any of the benefits provided by the ESI Act he shall not be entitled to receive any similar benefits admissible under the provisions of any other enactment. Thus, by enacting section 61 of the legislature has created a bar against receiving similar benefits under other enactment. Section 53 before its amendment read as under: "53. Disablement and dependant's benefits When an insured person is or his dependants are entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923, or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act, then the following provisions shall apply, namely
(i) The insured person shall, in lieu of such compensation or damages, receive the disablement benefit provided by this act, ( but subject otherwise to the conditions specified in the Workmen's Compensation Act, 1923) from the Corporation and not from any employer or other person.
(ii)(iv) xxxx xxxx xxxx Petition No. : 205/13 Page No. 21 of 34 22 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors.
(v) Save as modified by this Act the obligations and liabilities imposed on an employer by the Workmen's Compensation Act, 1923, shall continue to apply to him. Experience of the administration of the ESI Act had disclosed certain difficulties in its working. It was, therefore, further amended in 1966. Alongwith other amendments made in the ESI Act with legislature substituted present section 53 which read as under: "53. Bar against receiving or recovery of compensation or damages under any other lawAn insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person, any compensation or damages under the Workmen's Compensation Act, 1923 ( 8 of 1923) or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act."
The Workmen's Compensation Act was enacted by the legislature in 1923 with a view to provide for the payment by certain classes of employers to their work men compensation for injury by accident. Section 3 (1) of the Act provides that if personal injury is caused to a workman by accident arising out of an in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions contained in that Act Under Section 2 (1) (c) the word compensation is defined to mean compensation is defined to mean compensation as provided for by the Petition No. : 205/13 Page No. 22 of 34 23 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Act. The definition of the workman under the Act is as under: "2. (1) (n) 'workman' means any person ( other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is :
(i) xxx xxxx xxxx
(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing:
but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead include a reference to his dependants or any of them."
34. In the case of New India Assurance Co. Ltd. Vs. Bidami in Civil Misc.
Appeal No. 891 of 2008 decided on 03.08.2009 by the High Court of Rajasthan, the case of A Trehan Vs. Associated Electrical Agencies 1996 ACJ 853 SC was referred. Case of Tribhuvan Singh Vs. Ramesli Chandra 1998 ACJ 579 was also referred wherein it was held that Section 53 of the Employees State Insurance Act does not debar the workman to claim compensation against tortfeasor under the provisions of Motor Vehicles Act. In the case of Tribhuvan Singh (Supra) Section 46(1) (c) was discussed Petition No. : 205/13 Page No. 23 of 34 24 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. which provides that insured is entitled to the periodical payment when suffers from disablement as a result of employment injury. It does not envisage remedy where an employee suffers from tortious act. It was held in the case of Madhya Pradesh State Road Transport Corporation Vs. Praveer Kumar Bhatnagar 1994 ACJ 579 (MP) that EI Court does not deal with a tortfeasor's liability and does not award against him damages/compensation according to the uncodified law of torts for such of his act of omission or commission as is regarded a wrong liable to be redressed under the English common law. Section 53 of the ESI Act cannot kill the indefeasible right of obtaining compensation / damages under Motor Vehicles Act. In the case of Oriental Insurance Ltd. Vs. Mohan Kanwar 2007 ACJ 420 (Rajasthan) the High Court did not accept the submissions of counsel for the insurer stating that it would lead to the proposition that whenever an employee covered under the ESI Act suffers an employment injury, even if or at the hands of a person absolutely unconnected with such employment or the employer, such a tortfeasor would enjoy immunity from damages because of the victims employment being covered under the protective umbrella of State Insurance. Neither the Motor Vehicles Act, nor the ESI Act proceed on any such principle that tortfeasor who is a third party qua an employee or employer gets benefited or goes scot free having nothing to answer for his Petition No. : 205/13 Page No. 24 of 34 25 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. tortious deed. If such liability would be permitted to be avoided with reference to Section 53 of ESI Act, the result would be of providing exemption to a tortfeasor to answer for his tortious deed only because a beneficial piece of legislation of ESI Act provides for relief to the victim if there is a casual connection of his injury with his employment. Such interpretation has never been approved by Hon'ble Supreme Court and on the contrary as indicated by the Hon'ble Supreme Court in Western India Plywood Ltd. 1997 ACJ 1281(SC) the liability of the third party tortfeasor is not taken away by Section 53 of the ESI Act. The bar of Section 53 is obviously to protect the employer from being vexed twice for the same cause and the contention of the insurer that the bar of Section 53 or Section 61 of the ESI Act would operate to its benefit remains fundamentally baseless. It was held that so far as tortfeasor other than the employer is concerned, the workman can proceed under the Motor Vehicles Act against the tortfeasor but against the employer under the Workmen's Compensation Act. Similar view was taken by the Kerala High Court in the case of KuriKose Vs. Santosh Kumar 2010 ACJ 662 (Kerala) that bar of Section 53 of ESI Act does not apply to claim under the provisions of Motor Vehicles Act. The Kerala High Court relied upon the Hon'ble Supreme Court's decision in the case of Regional Director Employees State Insurance Corporation Vs. Petition No. : 205/13 Page No. 25 of 34 26 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Francis D'Costa 1992 ACJ 636 SC and it was held that if an injury is suffered in motor accident and such injury is an employment injury also, section 53 does not bar the claim in tort under Section 166 of the Motor Vehicles Act against the stranger tortfeasor but bars the claim against the employer under any other law.
35. Employment injury as defined by Section 2(8) of the ESI Act means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contacted within or outside the territorial limits of India. Section 2(9) defines employee to mean any person employed for wages in or in connection with the work of a factory or establishment to which the ESI Act applies. Insured person is defined by Section 2(14) to mean a person who is or was an employee in respect of whom contributions are or were payable under the Act and who is by reason thereof entitled to any of the benefits provided by the ESI Act.
36. In the instant case the petitioner did not suffer employment injuries. Rather when he was performing his duty as Traffic Marshal, he was hit by the Petition No. : 205/13 Page No. 26 of 34 27 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. vehicle being driven rashly and negligently by the respondent no.1 i.e. tortfeasor who was neither the employer nor was connected with the employer of the petitioner. It is true that the petitioner was covered under ESI scheme and was beneficiary of the same but his injuries due to the accident cannot in any way be said to be employment injuries. In my view, the employment injury is that if a person who is working on a machine or a factory sustains injuries due to the accident in relation to that machine. In the instant case, the petitioner was not working on a machine rather he was doing his duty marshaling the traffic and he was hit by a motor vehicle. So, he is entitled to claim compensation under Motor Vehicles Act. The Section 53 of ESI Act was substituted by Act no. 44 of 1966 w.e.f. 28.01.1968. The Motor Vehicles Act was substituted by Act no. 59 of 1988 and came into force w.e.f. 14.10.1988. Section 167 of the Motor Vehicles Act gives an option to the party which interalia provides that notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter can claim under either of those Acts but not under both. Petition No. : 205/13 Page No. 27 of 34 28
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37. In the present case, the petitioner has exercised his option under the Motor Vehicles Act as he sustained injuries due to the accident involving the motor vehicle. He did not exercise his option either under Workmen's Compensation Act or the ESI Act although covered under ESI scheme. So, in view of the case law (supra) and for the foregoing discussions, his claim is maintainable under the Motor Vehicles Act, 1988.
38. This Act is a beneficial legislation and even otherwise by exercising the option under Motor Vehicles Act, the petitioner would be benefited more in the facts and circumstances of the case. It was held in the case of Rajesh & Ors. Rajbir Singh & Ors. in CA Appeal No. 3860/2013 by Hon'ble Supreme Court that just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case to make good the loss suffered as a result of the wrong, as far as money can do so. The court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured should not face the vagaries of life on account of the discontinuance of the income earned by him. In the case of Santosh Devi Vs. National Insurance Co. Ltd. II (2012) ACC 377 (SC) it was held that in cases of motor accidents, the Petition No. : 205/13 Page No. 28 of 34 29 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. endeavour is to put the claimants in the preaccidental position. Compensation is therefore, required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb.
39. In the case A Trehan (Supra), the appellant was the employee and insured with ESI Act, 1948. He was carrying out repairs of television sets. In that course, a component burst which caused injuries on his face. He lost vision of his left eye. He approached ESI Corporation and the corporation granted the benefit available to him under the ESI Act.
Thereafter, he filed an application before the Commissioner of Workmen Compensation Act Bombay under Section 22 (2) of the Workmen Compensation Act 1923. The question of maintainability was raised in view of section 53 of the ESI Act. It was held that in view of the bar created by Section 53, the application filed by the appellant under the Workmen Compensation Act is not maintainable.
40. In the present case, the petitioner did not approach the ESI Corporation for compensation for the injuries sustained by him in the accident. The injuries Petition No. : 205/13 Page No. 29 of 34 30 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. sustained by him were not the employment injuries. He did not file any application for claiming compensation under the Workmen Compensation Act for the said injuries. The case of the petitioner is that when he was regulating the traffic on foot standing at a safe place on a covered drain observing moment of the traffic by giving and hand held signal light, respondent no. 1 came from Mahipalpur side driving his FIAT Car bearing no. DL9CC9391 rashly and negligently towards him. He lost control over the car and hit it on his left foot resulting injuries on his person. Being the case of nonemployment injuries, I am of the view that his claim is not barred U/s 53 of the ESI Act and is maintainable under the Motor Vehicle Act.
R E L I E F
41. In view of my findings on issues, I award a sum of Rs. 14,22,000/ to the petitioner as compensation. The petitioner is also awarded an interest @ 9% per annum from the date of filing of the petition till the realization of the amount.
42. Out of this awarded amount, a sum of Rs. 7,50,000/ be kept by the State Bank of India, Saket Courts, New Delhi in the form of "Fixed Deposit" in the following manner :
(a) A sum of Rs. 1,50,000/ for a period of 2 years.
(b) A sum of Rs. 1,50,000/ for a period of 4 years.
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(c) A sum of Rs. 1,50,000/ for a period of 6 years.
(d) A sum of Rs. 1,50,000/ for a period of 8 years.
(e) A sum of Rs. 1,50,000/ for a period of 10 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
43. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
44.As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
45. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Petition No. : 205/13 Page No. 31 of 34 32 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners.
within a period of 45 days from today, failing which respondent no. 2 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
46. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
(i) The interest on the fixed deposit be paid to the petitioner / claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to petitioner / claimant after due verification and the Bank shall issue photo identity Card to claimant / petitioner to facilitate identity.
(iii) No cheque book be issued to petitioner / claimant without the permission of this Court.
(iv) 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 / claimant alongwith the photocopy of the FDR's .
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(v) The original fixed deposit receipts shall be handed over to petitioner / claimant at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of petitioner / claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Petitioner / claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi. DIRECTIONS FOR THE RESPONDENT NO.2, INSURANCE COMPANY
47. The Respondent no. 2 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this tribunal within a period of 45 days from today.
48. The Respondent no. 2 is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in Petition No. : 205/13 Page No. 33 of 34 34 Rohitasav Singh @ Rohtas Vs. Yatender Parkash & Ors. whose favour the award has been passed.
49. The Respondent no. 2 shall intimate to the claimant/petitioner about its having deposited the cheques in favor of the petitioners in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate him to withdraw the same.
50. Copy of this award / judgment be given to the petitioners who are directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
51. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
52. Case is fixed for submitting compliance for 09.12.2013.
Announced in the open court
on 07th Day of November, 2013 (SANJIV JAIN )
Presiding Officer : MACT
South Distt. : Saket Courts
New Delhi : 07.11.2013
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