Delhi District Court
Ajay Jain vs Common on 15 September, 2014
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.231/14
Date of Institution: 23.04.2007
IN THE MATTER OF:
1. Ajay Jain
S/o Late Shri Mohan Lal.
2. Smt. Neelam Jain
W/o Shri Ajay Jain.
Both R/o B7, Custom Flats
INA Colony
New Delhi 110023. ...Petitioners
SUIT No.230/14
Date of Institution: 23.04.2007
IN THE MATTER OF:
Ajay Jain
S/o Late Shri Mohan Lal Jain
R/o B7, Custom Flats
INA Colony
New Delhi 110023. ...Petitioner
Suit No. 231/14, 230/14 & 234/14. Page No. 1 of 64
Ajay Jain v Mahinder Singh & Ors.
SUIT No.234/14
Date of Institution: 23.04.2007
IN THE MATTER OF:
Smt. Neelam Jain
W/o Shri Ajay Jain
R/o B7, Custom Flats
INA Colony
New Delhi 110023. ...Petitioner
Versus
Common Respondents
1. Mahinder Singh
S/o Shri Ghanoli
R/o Village Udia Fad, Tehsil Vair
District Bharat Pur
Rajasthan.
2. Manohar Kumar
S/o Shri Mahinder Singh
R/o P. S. Halena
Tehsil Vair
Distt. Bharat Pur
Rajasthan.
3. New India Assurance Co. Ltd.
12/1, Jeewan Raksha Building
Asaf Ali Road, New Delhi. ...Respondents
Suit No. 231/14, 230/14 & 234/14. Page No. 2 of 64
Ajay Jain v Mahinder Singh & Ors.
Final Arguments heard : 27.08.2014
Award reserved for : 15.09.2014
Date of Award : 15.09.2014
AWARD
1. Vide this judgmentcumaward, I proceed to decide three petitions filed
u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate
(hereinafter referred to as the Act) for grant of compensation arising out of the
same road accident.
2. It is the case of the petitioners that on 12.12.2004, the petitioners along
with their newly born baby namely Ms. Kashish aged about 101/2 months
were going after Darshan of Mahavir Ji from Delhi to Halena, NHII at about
6.30 p.m. the petitioners reached at Halena and one Tractor with Trauli
bearing No.RJ051R5868 was going in front of the petitioners' car, the said
Trauli was loaded with bricks and the petitioner Ajay Jain was driving his car
after the said Trauli. It is averred that the driver of the said tractor without
indication and negligently stopped the tractor on the road, resulting in the car
of the petitioners meeting with an accident with the tractor and the petitioner
Ajay Jain sustained injuries on his legs and Smt. Neelam Jain sustained
injuries on her right leg and left hand was also seriously injured. It is averred
that the driver of the tractor was driving the tractor without observing the traffic
rules and negligently and the daughter of the petitioners Kumari Kashish aged
Suit No. 231/14, 230/14 & 234/14. Page No. 3 of 64
Ajay Jain v Mahinder Singh & Ors.
about 101/2 months died at the spot. It is stated that in respect of the
accident FIR No.259/2004 under Sections 279/337/338/304A IPC was
registered at PS Halena, Rajasthan.
FACTS OF SUIT No.231/14
3. It is averred that Kumari Kashish died at the spot. It is stated that compensation is claimed because of the loss of life of the deceased and the consequences flowing from the same, loss of consortium and natural affection of the child to the petitioners. It is prayed that an amount of Rs.50,00,000/ be awarded as compensation in favour of the petitioners and against the respondents.
FACTS OF SUIT No.230/14
4. It is averred that the petitioner Ajay Jain sustained major injuries being fracture Tibial Condyle (Shazkter Type III) for which driving bone grafting left leg was done. It is averred that the petitioner remained under medical treatment for more than 15 months and was still under medical treatment. It is averred that the petitioner was got admitted in the hospital on 23.12.2004 and date of operation was 24.12.2004 and date of discharge was 27.12.2004. It is stated that the petitioner is 40 years of age and in government service with the Ministry of Finance, Department of Revenue, Office of the Commissioner of Suit No. 231/14, 230/14 & 234/14. Page No. 4 of 64 Ajay Jain v Mahinder Singh & Ors.
Customs (Preventive), New Delhi and was earning Rs.18,587/ in addition to government accommodation. It is prayed that an amount of Rs.15,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
FACTS OF SUIT No.234/14
5. It is averred that the petitioner Neelam Jain is 37 years old and a housewife and her anticipated income was Rs.3,000/ p.m. It is stated that the petitioner suffered Intertrochanteric fracture right hip, fracture shaft of humerus left and fracture shaft of femur right. It is averred that the petitioner sustained three major injuries and got operated in the reputed institution and the petitioner was still under medical treatment, firstly the petitioner was admitted in the hospital i.e. Indraprastha Apollo Hospital on 13.12.2004 and was operated and discharged on 20.12.2004, secondly the petitioner was again admitted in the hospital Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 7.7.2005 and was operated on 8.7.2005 and was discharged on 11.7.2005 and thirdly the petitioner was admitted in the hospital i.e. Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 9.2.2006 and was operated on 10.2.2006 and discharged on 13.2.2006. It is prayed that an amount of Rs.5,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
Suit No. 231/14, 230/14 & 234/14. Page No. 5 of 64 Ajay Jain v Mahinder Singh & Ors.
6. Written statement was filed on behalf of the respondents No.1 and 2 taking the preliminary objections that the petition is bad for nonjoinder and misjoinder of necessary parties. It is averred that the respondents are neither necessary nor proper parties to the petition. It is averred that the petitioners have not approached the court with clean hands and are guilty of suggestio falsi and suppressio vari. It is averred that the petitioner Ajay Jain is a victim of his own wrong and the police have falsely planted the case on the respondents No.1 and 2. It is averred that the petition is false, fictitious and malafide and has been filed with a view to blackmail the respondents No.1 and 2 and to extract money from them. It is averred that the alleged accident, if any, has occurred due to the negligence of the petitioner Ajay Jain. The averments made in the claim petitions were denied. The time, date, place and factum of accident are denied. It is denied that any accident took place on 12.12.2004 at about 6.30 p.m. at Distt. Bharatpur, Tehsil Vair, Rajasthan. It is averred that the alleged FIR No.259/04 u/s 279/337/338/304A of IPC had been falsely planted by the police at the instance of the petitioners, in connivance and collusion with the police against the respondents No.1 and 2, and the police had falsely implicated the respondents No.1 and 2 in the case. It is denied that the tractor No.RJ051R5868 caused any accident as alleged or that it is an offending vehicle. It is averred that the amount of compensation claimed by the petitioners is too high, excessive and exaggerated. It is averred that the tyre of the tractor was punctured on the date and time when the accident took place, due to the said reason, the tractor trauli was parked on Suit No. 231/14, 230/14 & 234/14. Page No. 6 of 64 Ajay Jain v Mahinder Singh & Ors.
the left side of the road and the driver of the tractor went to bring the puncture maker. It is averred that when the respondent No.2 came back along with the puncture maker, he saw that the petitioner Ajay Jain had himself hit the tractor trauli from the backside, due to his own negligence.
7. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that the claim petition is vague, incomplete and does not disclose any cause of action on what account the respondent No.3 is liable to pay the compensation. It is averred that in case it is found that the respondent No.2/driver of the alleged offending tractor No.RJ051R5868 was not holding a legal, valid and effective driving license at the time of the alleged accident, the respondent No.3 would not be liable to pay any compensation to the petitioners as also if the respondent No.1/owner of the alleged offending tractor No.RJ051R5868 had not obtained a valid and effective permit at the time of the alleged accident. It is averred that the petition is liable to be dismissed as the petitioners have willfully and deliberately not mentioned the registration No. of the Maruti Car, which was being driven by the petitioner Ajay Jain and was involved in the accident. It is averred that the petition is bad for nonjoinder of the owner and insurer of the car which was involved in the accident and the petitioners had deliberately not impleaded the owner and insurer of the car. It is averred that the accident took place due to the rash and negligent driving of the driver of the Maruti car which was being driven by the petitioner Ajay Jain himself, as he could not Suit No. 231/14, 230/14 & 234/14. Page No. 7 of 64 Ajay Jain v Mahinder Singh & Ors.
control his vehicle and caused the accident therefore, he was liable for composite negligence. It is averred that in case it is found that the driver of the Maruti car was not holding a valid DL at the time of the accident, the respondent No.3 would not be liable to pay any compensation to the petitioners. The averments made in the claim petition were denied. It is admitted that the tractor No.RJ051R5868 was insured in the name of Shri Mahender Singh vide policy No.330602/31/04/01/00003596 valid from 05.07.2004 to 04.07.2005 as a miscellaneous and special type of vehicle. It is averred that it is the driver of the car who could not control his car and caused the accident and he was responsible for contributory negligence.
8. On 12.9.2007 it was submitted by the learned counsel that the name of the respondent No.2 was mentioned wrongly as Manoj while his correct name was Manohar Kumar. Matter was also listed for conciliation but the same could not succeed. Vide order dated 26.5.2008 of my learned predecessor Suits No.231/14, 230/14 and 234/14 were clubbed together and the present Suit No.231/14 was treated as the main case. From the pleadings of the parties, the following issues were framed vide order dated 26.05.2008 of my learned predecessor:
1. Whether the daughter of the petitioners no.1 and 2 named Kashish sustained fatal injuries in case no.1181/07 and petitioner Ajay Jain sustained injury in suit no.1184/07 and Smt. Neelam Jain in suit no.1185/07 sustained injury on her person in Suit No. 231/14, 230/14 & 234/14. Page No. 8 of 64 Ajay Jain v Mahinder Singh & Ors.
the road accident on 12.12.2004 at about 6.30 p.m. involving motor vehicle no.RJ 05 1R 5868 being driven by respondent no.2 in rash and negligent manner, owned by respondent no.1 and insured with respondent no.3? OPP
2. Whether the petitioners are entitled for compensation in all the three connected cases, if so, to what amount and from whom? OPP
3.Relief.
Vide order dated 28.5.2012 of my learned predecessor the respondents No.1 and 2 were proceeded exparte. An application was filed on behalf of the petitioners to correct the name of the driver/ respondent No.2 which was allowed vide order dated 15.1.2013 of my learned predecessor.
9. Shri Ajay Jain entered into the witness box as PW1 being one of the petitioners in present Suit No.231/14 and Suit No.230/14 and for petition No. 234/14 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petitions. He stated that after the accident he and his family was removed by PCR van to Bharatpur Civil Hospital, (Rajasthan) for medical treatment where the doctors declared the minor girl dead. He stated that the deceased Kashish was 10 1/2 months old when she died in the accident and was the only daughter /kid of the petitioner. He stated that the deceased Kashish who died in the accident had left behind the petitioner Ajay Jain and his wife Neelam Jain and their lives had been totally ruined as they did not have any kid till date. He stated that he had spent Rs. Suit No. 231/14, 230/14 & 234/14. Page No. 9 of 64 Ajay Jain v Mahinder Singh & Ors.
25,000/ on the funeral and other religious ceremonies on her sudden and premature death. He stated that he had suffered and was still suffering from mental shock and torture due to the sudden death of his daughter. He further stated that he himself sustained serious and grievous injuries in his left leg, multiple fractures, one plate and some screws had been installed in borrowed bone to set right his left leg and skin grafting had also been done by the doctors of Parmanand Hospital, Civil Lines, Delhi. He stated that he was bed ridden for 1 ½ months due to the accident and could not join his service. He stated that he had incurred Rs.40,000/ to 45,000/ on his medical treatment, the said amount was reimbursed by his office to him, but the expenses which were incurred on the conveyance and special diet and the money spent of physiotherapy were still pending to be claimed. He stated that he feels pain in his left leg in the change of season and his life span has also been shortened due to the accident. The OPD card/treatment papers from the R. B. H. Civil Hospital, Bharatpur, Rajasthan and discharge slip from 23.12.2004 to 27.12.2004 of Sant Parmanand Hospital, Civil Lines, Delhi which shows the date of operation on 24.12.2004 and the certified criminal record issued by the Bair Court, Distt. Bharatpur (Rajasthan) is Ex.PW1/1 to Ex.PW1/2. He stated that he was claiming compensation on account of the death of his young daughter in the accident and the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss.
Suit No. 231/14, 230/14 & 234/14. Page No. 10 of 64 Ajay Jain v Mahinder Singh & Ors.
10. Smt. Neelam Jain appeared in the witness box as PW2 being the petitioner in present suit No.234/14 and being one of the petitioners in Suit No. 231/14 and led her evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petitions. She stated that on 12.12.2004 she along with her husband and newly born baby Kashish aged about 10 ½ months were going for darshan of Mahavirji from Delhi to Halena, NH - III. At about 6.30 p.m. when their car reached Halena, in the meantime the car met with an accident due to the negligence of a tractor trauli running ahead. After the accident she and her family members were removed to the R. B. M. Civil Hospital, Bharatpur, Rajasthan, she was in an unconscious condition when she was admitted to the hospital by PCR van. She stated that she remained unconscious at the hospital during treatment and was referred to Apollo Hospital, Delhi for further treatment and after two days at Apollo Hospital when she got consciousness, it was revealed to her that her only daughter /kid had died in the accident. She stated that she sustained serious and grievous injuries on her different parts of the body being Intertrochanteric fracture right hip, fracture shaft of humerus left, fracture shaft of femur right. The grievous injuries were treated at the hospital and two operations were performed on her body. Firstly she was admitted on 13.12.2004 for operation and discharged on 20.12.2004, secondly she was admitted on 07.07.2005 and after operation discharged on 11.07.2005 from Parmanand Hospital and thirdly she was admitted on 09.02.2006 and got operated on 10.02.2006 and was discharged on 13.02.2006 from the said hospital. She stated that she incurred up to Rs. Suit No. 231/14, 230/14 & 234/14. Page No. 11 of 64 Ajay Jain v Mahinder Singh & Ors.
3,00,000/ on the medical treatment/operations and physiotherapy done in the different hospitals, most of the bills had been reimbursed by the office of her husband except Rs.25,000/ approximately. She stated that she also suffered from permanent disability as she still limps while walking after four years of the accident. She stated that the major loss which she and her husband had suffered was that after the death of her young daughter in the accident, they were unable to produce children due to the accident and she suffered from infertility. She stated that after three years of the accident, she decided to produce a baby through test tube process but after spending Rs.35,000/ it had all gone waste. After that on 14.05.2008, again the IVF process was adopted by borrowing the female eggs and it got successful and she had to spend about Rs.1,75,000/ in the said process till date. She stated that she is in the profession of teaching as she gives home tuitions to children and earns Rs. 1,61,000/ per year and she was an income tax payee at the time of the accident. She stated that she had also incurred Rs.20,000/ on conveyance and Rs.40/ to Rs.55/ to strengthen her body. She stated that she is claiming compensation on account of the death of her young daughter and also claiming for the permanent disability in her body, loss of enjoyment, special diet, conveyance besides the financial loss. The treatment papers and bills of Rs.2,37,069.28 are Ex.PW2/1 to Ex.PW2/124.
11. PW3 Dr. Vivek Bhardwaj, Medical Officer, RBM Hospital, Bharatpur, Rajasthan stated that on 12.12.2004 he was on emergency night duty in the Suit No. 231/14, 230/14 & 234/14. Page No. 12 of 64 Ajay Jain v Mahinder Singh & Ors.
hospital. On that night, he did not check up any patient in the emergency but he issued the certificate on 13.12.2004 on humanitarian ground which is Ex.PW3/A.
12. PW4 Shri Nand Kishore Sharma, Record Clerk, Sant Parmanand Hospital had brought the record of the patient Neelam Jain dated 07.07.2005 to 11.07.2005 which is collectively Ex.PW4/A1 to A49. He stated that the patient was again admitted on 09.02.2006 till 13.02.2006 and the medical record of the same is collectively Ex.PW4/B1 to B53.
13. PW5 Shri Shekhar Dogra, Record Technician, Apollo Hospital had brought the record of the patient Neelam Jain of her medical treatment in the hospital which is Ex.PW5/A1 to A104.
14. PW6 Shri Mahesh Chand, Hospital Attendant, Dr. Kuldeep Jain's IVF and Laparoscopy Centre had brought the record of Mrs. Neelam Jain dated 22.01.2008 and the photocopies are collectively Ex.PW6/A1 to A6. He had also brought the photocopy of the OPD card and the same is Ex.PW6/B.
15. On behalf of the respondent No.3 Shri S.K. Soni, Deputy Manager appeared in the witness box as R3W1 and had brought the certified copy of policy bearing No.330602/31/04/01/00003596 valid from 05.07.2004 to 04.07.2005 which is Ex.R3W1/1. He stated that they had directed their counsel Suit No. 231/14, 230/14 & 234/14. Page No. 13 of 64 Ajay Jain v Mahinder Singh & Ors.
to send order 12 Rule 8 CPC notice to insured and driver which are Ex.R3W1/2 and 3. The postal receipts are Ex.R3W1/4 and 5. AD cards received back are Ex.R3W1/6 and 7. He stated that they had verified the DL of the driver through their investigator and the same was found invalid. DL verification report is Ex.R3W1/8. He stated that the DL verification report is endorsed with the stamp of RTO. He stated that they had also summoned the driver and owner through Court. He stated that the insured had not provided the documents as per S.134 of MV Act and also had breached the terms and conditions of the policy therefore, the company was not liable to pay any compensation. He was not crossexamined on behalf of the petitioners and the respondents No.1 and 2.
16. PE was closed on 31.7.2009. RE was closed vide order dated 20.10.2009 of my learned predecessor. Thereafter R3W1 was examined and RE was closed on 16.3.2010. Vide order dated 14.5.2010 of my learned predecessor the petitioners were given time to produce better evidence and particulars of the treatment for testtube baby as a result of disability arising out of the accident. On 4.11.2011 it was stated by the learned counsel for the petitioners that no other witness was to be examined and PE was closed. Thereafter the matter was listed for RE. Several attempts were made to summon the witness from RTO, Bharatpur but no witness appeared though a report was received from the Bharatpur Transport Authority. RE was closed vide order dated 7.7.2014.
Suit No. 231/14, 230/14 & 234/14. Page No. 14 of 64 Ajay Jain v Mahinder Singh & Ors.
17. I have heard the Learned Counsel for the petitioners as well as the Learned Counsel for the respondent No.3 and perused the record. The petitioners were also examined on 4.8.2014 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.
18. My findings on the specific issues are as under:
Issue No. 1
19. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they/ the deceased sustained injuries in an accident caused due to 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 Suit No. 231/14, 230/14 & 234/14. Page No. 15 of 64 Ajay Jain v Mahinder Singh & Ors.
in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Suit No. 231/14, 230/14 & 234/14. Page No. 16 of 64 Ajay Jain v Mahinder Singh & Ors.
20. The case of the petitioners is that on 12.12.2004, the petitioners along with their newly born baby namely Ms. Kashish aged about 101/2 months were going after Darshan of Mahavir Ji from Delhi to Halena, NHII at about 6.30 p.m. the petitioners reached at Halena and one Tractor with Trauli bearing No.RJ051R5868 was going in front of the petitioners' car, the said Trauli was loaded with bricks and the petitioner Ajay Jain was driving his car after the said Trauli. It was averred that the driver of the said tractor without indication and negligently stopped the tractor on the road, resulting in the car of the petitioners meeting with an accident with the tractor and the petitioner Ajay Jain sustained injuries on his legs and Smt. Neelam Jain sustained injuries on her right leg and the left hand was also seriously injured. It was averred that the driver of the tractor was driving the tractor without observing the traffic rules and negligently and the daughter of the petitioners Kumari Kashish aged about 101/2 months died at the spot. It was stated that in respect of the accident FIR No.259/2004 under Sections 279/337/338/304A IPC was registered at PS Halena, Rajasthan. In paras 1 and 2 of his affidavit Ex.PW1/A PW1 reiterated the manner of the accident as stated in the claim petition. PW2 in paras 1 and 2 of her affidavit Ex.PW2/A had stated that when they reached Halena, their car met with an accident due to the negligence of a tractor trauli running ahead.
21. The petitioners have filed certified copies of the criminal record consisting of copy of order, copy of charge sheet, copy of FIR No.259/2004 Suit No. 231/14, 230/14 & 234/14. Page No. 17 of 64 Ajay Jain v Mahinder Singh & Ors.
under sections 279/337/338/304A IPC, PS Halena, District Bharatpur, copy of notice under Section 133 MV Act, copy of RC of the offending vehicle, copy of insurance policy of the offending vehicle, copy of DL of the driver of the offending vehicle, copy of authority letter on behalf of the insurance company, copy of application for superdari, copy of application for cancellation of endorsement/ superdarinama and seeking permission to sell the vehicle in which the petitioners were traveling, order on the same, copy of superdarinama, copy of Crime Detail Form, copy of MLC of Ajay Jain and Neelam Jain and inquest papers in respect of the deceased. As per the FIR No.259/2004 under sections 279/337/338/304A IPC, PS Halena, District Bharatpur the case was registered on the basis of complaint of Shri Ajay Jain wherein he had stated the manner in which the accident took place. As per the charge sheet the respondent No.2 has been charge sheeted for the offence under sections 279/337/338/304A IPC.
22. Written statement was filed on behalf of the respondents No.1 and 2 averring that the petitioner Ajay Jain was a victim of his own wrong and the police had falsely planted the case on the respondents No.1 and 2. It was averred that the alleged accident, if any, had occurred due to the negligence of the petitioner Ajay Jain. The time, date, place and factum of the accident were denied. It was denied that any accident took place on 12.12.2004 at about 6.30 p.m. at Distt. Bharatpur, Tehsil Vair, Rajasthan. It was averred that the alleged FIR No.259/04 u/s 279/337/338/304A of IPC had been falsely planted by the police at the instance of the petitioners, in connivance Suit No. 231/14, 230/14 & 234/14. Page No. 18 of 64 Ajay Jain v Mahinder Singh & Ors.
and collusion with the police against the respondents No.1 and 2, and the police had falsely implicated the respondents No.1 and 2 in the case. It was denied that the tractor No.RJ051R5868 caused any accident as alleged or that it was an offending vehicle. It was averred that the tyre of the tractor was punctured on the date and time when the accident took place, due to the said reason, the tractor trauli was parked on the left side of the road and the driver of the tractor went to bring the puncture maker and when the respondent No.2 came back along with the puncture maker, he saw that the petitioner Ajay Jain had himself hit the tractor trauli from the backside, due to his own negligence.
23. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that at the time of the accident he was driving his car. He had brought his original DL which was issued from Ghaziabad UP, the copy of the same is Ex.PW1/DX. During cross examination by the learned counsel for the respondents No.1 and 2 PW1 stated that the speed of the tractor trolley was around 4045 k.m./hr. He stated that the speed of his car was about 50 to 60 k.m./hr. He stated that the distance between the tractor trolley and his Fiat Palio car was about 5 to 6 meters. He admitted that the speed of his car was higher than the speed of the tractor trolley. He denied the suggestion that the accident was caused due to his own negligence while driving his Palio car at high speed volunteered it was caused because of sudden brake applied by the tractor trolley driver. He denied the suggestion that the tractor trolley was already Suit No. 231/14, 230/14 & 234/14. Page No. 19 of 64 Ajay Jain v Mahinder Singh & Ors.
parked aside the road due to being punctured. He stated that his wife was sitting towards the left side with him in the Palio car. He stated that on the day of the accident there was fog on the road. He stated that his car was hit with the trolley in its right side and his car was damaged from the left side. He stated that he noted himself the registration No. of the tractor trolley. He denied the suggestion that he had claimed exorbitant amount in his claim petition or that he had filed false documents just to get heavy compensation in the claim petition.
24. During crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that at the time of the accident her husband was driving the car. She could not say the direction of the offending vehicle on the road before the accident. She could not say the speed of their (our) car. She denied the suggestion that her husband was driving the car at a high speed in rash and negligent manner. She admitted that their car hit from the back of the offending vehicle. Thus PW1 had stated that at the time of the accident he was driving his car and PW2 had also stated to that effect and there is nothing to dispute the same. He had brought his original DL which was issued from Ghaziabad UP, the copy of the same is Ex.PW1/DX and again no dispute has been raised about the validity or otherwise of the same. PW1 stated that the speed of the tractor trolley was around 4045 k.m./hr. He stated that the speed of his car was about 50 to 60 k.m./hr and the distance between the tractor trolley and his Fiat Palio car was about 5 to 6 meters. PW2 could not say the direction of the offending vehicle on the Suit No. 231/14, 230/14 & 234/14. Page No. 20 of 64 Ajay Jain v Mahinder Singh & Ors.
road before the accident nor the speed of their (our) car. It is pertinent that PW1 himself admitted that the speed of his car was higher than the speed of the tractor trolley though he denied the suggestion that the accident was caused due to his own negligence while driving his Palio car at high speed volunteered it was caused because of sudden brake applied by the tractor trolley driver. He also denied the suggestion that the tractor trolley was already parked aside the road due to being punctured. He had also stated that on the day of the accident there was fog on the road. He stated that his car was hit with the trolley in its right side and his car was damaged from the left side and PW2 admitted that their car hit from the back of the offending vehicle.
25. The respondents No.1 and 2 have not produced any evidence to show that the tractor trolley was punctured due to which the same was parked on the side of the road and even the mechanical inspection reports of the two vehicles have not been placed on record by either party. At the same time it is not in dispute that the car had hit the offending tractor from the back though PW1 had also stated that the right side of the trolley had hit his car and his car was damaged from the left side. It is significant that PW1 had stated that the distance between the tractor and his car was 5 to 6 metres but if his car was at a higher speed than the tractor as stated by PW1 himself the distance would be getting reduced. Though it is the contention of the respondents No.1 and 2 that the tractor trolley was parked on the side of the road but even if the contention of the petitioners is accepted that the Suit No. 231/14, 230/14 & 234/14. Page No. 21 of 64 Ajay Jain v Mahinder Singh & Ors.
accident had taken place due to the driver of the tractor trolley applying sudden brakes, if the petitioner Ajay Jain had been driving the car with due care and caution he would have been able to control the car in time and it would not have hit the tractor trolley. Moreover PW1 had stated that on the day of the accident there was fog and as such PW1 needed to drive with extra care and caution and it is also not the case that the tractor trolley had come in front of the car suddenly. It may also be mentioned that the fact that the tractor trolley had hit the car from the right side and the car was damaged on the left side as stated by PW1 also shows that PW1 might have been trying to overtake the tractor trolley when the accident took place.
26. The respondents No.1 and 2 had crossexamined PW1 and PW2 but thereafter have not led any evidence to dispute the version put forth by the petitioners or in the criminal record. The criminal record has been placed on record which shows that the respondent No.2 has already been charge sheeted for the offence under Sections 279/337/338/304A IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. There is nothing to show that the respondent No.2 had made any complaint against his false implication in the present case. The respondents No.1 and 2 have not led any evidence to prove any other version of the accident and there is no evidence from them to disprove the particulars of the accident or the Suit No. 231/14, 230/14 & 234/14. Page No. 22 of 64 Ajay Jain v Mahinder Singh & Ors.
involvement of vehicle No.RJ051R5868. The fact that the charge sheet is filed against respondent No.2 and respondent No.2 is facing criminal trial is also not disputed. In view of the testimony of PW1 and PW2 and the documents on record which have remained unrebutted, the negligence of respondent No.2 has been prima facie proved. However in view of what has been discussed above the petitioner Ajay Jain had also contributed to the happening of the accident. The negligence of the respondent No.2 and of the petitioner Ajay Jain is apportioned as 50:50. At the same time it would have bearing only in suit No.230/14 but not in suits No.231/14 and 234/14 as the deceased Kashish and the petitioner Neelam Jain would be regarded as passengers in the car.
27. It was stated that the petitioner Ajay Jain sustained injuries on his legs and Smt. Neelam Jain sustained injuries on her right leg and left hand was also seriously injured and the daughter of the petitioners Kumari Kashish aged about 101/2 months died at the spot. The inquest papers are on record in respect of Kashish. Further PW3 had brought the original received dead body register to show that on 12.12.2004 at 7.20 p.m., one dead body of a female child of ten and half months, daughter of Ajay Jain was brought by police. Body was kept in mortuary. A certified copy of the record is Ex.PW3/A. The MLCs of the petitioners Ajay Jain and Neelam Jain are also on record which show the injuries received by them. Thus it stands established that the deceased had sustained injuries in the accident due to which she died and the petitioners Ajay Jain and Neelam Jain had also Suit No. 231/14, 230/14 & 234/14. Page No. 23 of 64 Ajay Jain v Mahinder Singh & Ors.
sustained injuries in the accident. Issue No.1 is decided accordingly. ISSUE NO. 2 COMPENSATION IN SUIT No.231/14
28. The petitioners Ajay Jain and Neelam Jain are the parents of the deceased Kashish. It is the case of the petitioners that the deceased was 10 ½ months old when she died and was the only daughter/ kid of the petitioners and she had left behind the petitioners and their lives had been totally ruined. PW1 had deposed that he had suffered and was still suffering from mental shock and torture due to the sudden death of his daughter. During cross examination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he had not placed the copy of his ration card on file. He stated that he had not placed any document which showed that his deceased daughter was of 10 months 10 days at the time of the accident. However in the inquest papers as well the age of the deceased has been mentioned as 10 ½ months.
29. The petitioners in support of their case had produced PW3 in the witness box who stated that on 12.12.2004 he was on emergency night duty in the hospital and on that night, he did not check up any patient in the emergency but he issued the certificate on 13.12.2004 on humanitarian ground Suit No. 231/14, 230/14 & 234/14. Page No. 24 of 64 Ajay Jain v Mahinder Singh & Ors.
which is Ex.PW3/A. By way of the said certificate it was certified that Baby Kashish who died on 12.12.2004 during road traffic accident was received dead at RBM Hospital, Bharatpur. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW3 admitted that he had not treated the patient nor he saw the patient. He stated that during his service life, he had not issued any other certificate on humanitarian ground except the present one. He stated that he wrote the said document on the basis of the record maintained by the hospital. He did not recollect on the day of his examination regarding the patient admitted in the emergency. He stated that he issued the certificate on the request of the patient Neelam Jain's husband. He stated that no senior official or MS or the emergency incharge present over there at that time directed him to issue the certificate. He denied the suggestion that he issued the certificate on 18.12.2001 not on 13.12.2004. He stated that he had not seen the MLC before issuing the certificate. He stated that the Principal Medical Officer was Dr. K. K. Aggarwal at that time. He stated that he had not maintained any record of the certificate. He denied the suggestion that he issued the certificate just to give the benefit in the case. During crossexamination by the learned counsel for the respondents No.1 and 2 PW3 stated that he had done his MBBS from Gwalior and post graduation from Jaipur. PW3 thus admitted that he had not treated the patient nor he saw the patient. He also stated that during his service life, he had not issued any other certificate on humanitarian ground except the present one. He stated that he wrote the said document on the basis of the record maintained by the Suit No. 231/14, 230/14 & 234/14. Page No. 25 of 64 Ajay Jain v Mahinder Singh & Ors.
hospital. He stated that he issued the certificate on the request of the patient Neelam Jain's husband. Further he had not seen the MLC before issuing the certificate and he had not maintained any record of the certificate. However nothing much turns on the said document as there are other documents to show that the deceased Kashish died due to the injuries sustained in the accident.
30. PW1 had also deposed that he had spent Rs.25,000/ on the funeral and other religious ceremonies of the sudden and premature death of his daughter. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he had not placed any document which showed that he had spent Rs.25,000/ on the last rites of his deceased minor baby. Thus PW1 had not placed any document which showed that he had spent Rs.25,000/ on the last rites of his deceased minor baby and there is even nothing to show the same.
31. Since the deceased was a child of 10 ½ months it is very difficult to ascertain her potential at that early stage. One cannot measure on golden scales the value of opportunities one would have availed and at the same time could not have availed. The subject matter has to be guided by surrounding circumstances. In R.K. Malik and Anr. V. Kiran Pal and Ors. AIR 2009 SC 2506, the Hon'ble Supreme Court has observed as under:
Suit No. 231/14, 230/14 & 234/14. Page No. 26 of 64 Ajay Jain v Mahinder Singh & Ors.
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, loss of dependency by its very nature is awarded for prospective or future loss. In this context Lord Atkinson aptly observed in Taff Vale Rly. Col. v. Jenkins (191113) All England Reporter 160 as follows:
"In the case of death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parent's claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
16.Then, how does one calculate the pecuniary compensation for loss of future earnings and loss of dependency of the parents, grandparents etc. in the case of nonworking student? Under the Second Schedule of the Act in the case of a nonearning person, his income is notionally estimated at Rs.15,000/ per annum. The Second Schedule is applicable to claim petitions filed under Section 163A of the Act. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable under Section 166 read with 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases." (See Abati Bezbaruah v. Dy. Director General Geological Survey of India (2003) 3 SCC 148; United India Insurance Company Ltd. v. Patricia Jean Mahajan (2002) 6 SCC 281 and UP State Road Transport Suit No. 231/14, 230/14 & 234/14. Page No. 27 of 64 Ajay Jain v Mahinder Singh & Ors.
Corp. v. Trilok Chandra (1996) 4 SCC 362).
It was thus held that though the child may not be earning at the time of the accident but under no stretch of imagination it can be said that the parents have not suffered any pecuniary loss and loss of dependency by its very nature is awarded for prospective or future loss. In this case the notional income of the deceased who was a student and nonearning person was taken as Rs.15,000/ per annum and as per the Second Schedule of the Motor Vehicle Act, 1988 the multiplier of 15 was to be applied in case the victim was upto 15 years. In the present case though the deceased was only 10 ½ months old the same principles would apply. Thus the loss of dependency came to Rs.15,000/ X 15 = Rs.2,25,000/.
32. As regards the payment of nonpecuniary compensation to the petitioners who are the parents of the deceased on account of loss of human life, loss of company, happiness, loss of expectation of life, loss of love and affection, it has been held in R.K. Malik's case (supra) as under:
"24. It is extremely difficult to quantify the nonpecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for nonpayment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a Suit No. 231/14, 230/14 & 234/14. Page No. 28 of 64 Ajay Jain v Mahinder Singh & Ors.
devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered nonpecuniary loss or damage as a consequence of the wrong done to him by way of damages/ monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for "loss of expectation of life." This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependent brings about the action.
25.That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Courts have therefore used the expression "standard compensation" and "conventional amount/ sum" to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensations."
Thus the Hon'ble Supreme Court was pleased to uphold the increase of amount of Rs.75,000/ compensation on account of nonpecuniary damages due to the death of a child and in the instant case as well the petitioners would be entitled to Rs.75,000/ towards nonpecuniary damages.
33. As regards the future prospects it was held in R.K. Malik's case (supra) as under:
Suit No. 231/14, 230/14 & 234/14. Page No. 29 of 64 Ajay Jain v Mahinder Singh & Ors.
"31. A forceful submission has been made by the learned counsel appearing for the claimantsappellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S.R.T.C. v. Susamma Thomas (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case (supra)."
Thus the Hon'ble Supreme Court held that denying compensation towards future prospects seems to be unjustified and Rs.75,000/ were granted as compensation for future prospects of the child. Accordingly the petitioners would be entitled to an amount of Rs.75,000/ on account of future prospects. The petitioners are thus entitled to compensation of Rs.2,25,000/ + 75,000/ + 75,000/ = Rs.3,75,000/. The Hon'ble High Court in Chiranji Lal and another v. Mangat Ram and Others 2011 ACJ 614 held that in case of minors' death in the accident, petitioners are entitled to a compensation of Rs.2,25,000/ under the head of loss of income and Rs.75,000/ towards love and affection and Rs. 75,000/ towards future prospects, in total Rs.3,75,000/ as compensation. Similar view was taken by the Hon'ble High Court in National Insurance Suit No. 231/14, 230/14 & 234/14. Page No. 30 of 64 Ajay Jain v Mahinder Singh & Ors.
Company v. Farzana and others 2009 ACJ 2763 and in Sunil Kumar v. Gopal Shah and Anr. III (2012) ACC 180. Thus the petitioners are entitled to the compensation of Rs.3,75,000/ in total.
COMPENSATION IN SUIT No.230/14
34. 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 nonpecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
35. The case of the petitioner Ajay Jain is that due to the accident on 12.12.2004 he sustained injuries on his legs. It was averred that the petitioner sustained major injuries being fracture Tibial Condyle (Shazkter Type III) for which driving bone grafting left leg was done. It was averred that the petitioner remained under medical treatment for more than 15 months and was still under medical treatment. It was averred that the petitioner was got admitted in Suit No. 231/14, 230/14 & 234/14. Page No. 31 of 64 Ajay Jain v Mahinder Singh & Ors.
the hospital on 23.12.2004 and date of operation was 24.12.2004 and date of discharge was 27.12.2004.The petitioner in paras 710 of his affidavit Ex.PW1/A had stated to that effect. He stated that after the accident he and his family was removed by PCR van to Bharatpur Civil Hospital, (Rajasthan) for medical treatment where the doctors declared the minor girl dead. He stated that he sustained serious and grievous injuries in his left leg, multiple fractures, one plate and some screws had been installed in borrowed bone to set right his left leg and skin grafting had also been done by the doctors of Parmanand Hospital, Civil Lines, Delhi. He stated that he was bed ridden for 1 ½ months due to the accident and could not join his service. He stated that he had incurred Rs.40,000/ to 45,000/ on his medical treatment, the said amount was reimbursed by his office to him, but the expenses which were incurred on the conveyance and special diet and the money spent on physiotherapy were still pending to be claimed. He stated that he felt pain in his left leg in the change of season and his life span had also been shortened due to the accident. The OPD card/treatment papers from the R. B. H. Civil Hospital, Bharatpur, Rajasthan and discharge slip from 23.12.2004 to 27.12.2004 of Sant Parmanand Hospital, Civil Lines, Delhi which shows the date of operation on 24.12.2004 is Ex.PW1/1 and Ex.PW1/2. He stated that he was claiming compensation on account of the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss. The copy of the MLC is on record which shows swelling and pain in whole of left knee and the injuries were opined to Suit No. 231/14, 230/14 & 234/14. Page No. 32 of 64 Ajay Jain v Mahinder Singh & Ors.
be simple blunt. However the discharge summary of Sant Parmanand Hospital is on record as per which the petitioner was diagnosed as having fracture tibial condyle (Shazkter Type III). The same also shows that the petitioner remained admitted in hospital from 23.12.2004 to 27.12.2004. Thus the injuries were grievous in nature. There is however nothing to show that the petitioner had sustained any permanent disability in the accident.
36. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he had placed the medical treatment papers of himself and his wife on file. He stated that he had not filed any document to show that he was confined to bed for one and half month volunteered but he had undergone a major operation of his leg. He admitted that he had got reimbursed the medical bills of himself and his wife from his department. He admitted that the bills which were not reimbursed by his department are placed on the file and some of them were his current bills. Thus PW1 stated that he had not filed any document to show that he was confined to bed for one and half month and had volunteered that he had undergone a major operation of his leg. However even in the discharge summary he was not advised bed rest for any particular period. PW1 had deposed that the expenses on his medical treatment had been reimbursed by his office and even during crossexamination he admitted that he had got reimbursed the medical bills of himself and his wife from his department. He admitted that the bills which were not reimbursed by his department are Suit No. 231/14, 230/14 & 234/14. Page No. 33 of 64 Ajay Jain v Mahinder Singh & Ors.
placed on the file and some of them were his current bills. However no such bill has been placed on record. Even there is nothing to show any expenses on physiotherapy. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. Though the petitioner received reimbursement from his office for his medical treatment he would have incurred some expenditure towards medicines and medical treatment even during the subsequent period. As such an amount of Rs.2,000/ (Rs.Two Thousand only) is awarded towards medicines and medical treatment. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
37. 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."
Suit No. 231/14, 230/14 & 234/14. Page No. 34 of 64 Ajay Jain v Mahinder Singh & Ors.
The case of the petitioner is that due to the accident on 12.12.2004 he sustained injuries on his legs. It was averred that the petitioner sustained major injuries being fracture Tibial Condyle (Shazkter Type III) for which driving bone grafting left leg was done. It was averred that the petitioner remained under medical treatment for more than 15 months and was still under medical treatment. It was averred that the petitioner was got admitted in the hospital on 23.12.2004 and date of operation was 24.12.2004 and date of discharge was 27.12.2004. He stated that after the accident he and his family was removed by PCR van to Bharatpur Civil Hospital, (Rajasthan) for medical treatment where the doctors declared the minor girl dead. He stated that he sustained serious and grievous injuries in his left leg, multiple fractures, one plate and some screws had been installed in borrowed bone to set right his left leg and skin grafting had also been done by the doctors of Parmanand Hospital, Civil Lines, Delhi. He stated that he was bed ridden for 1 ½ months due to the accident and could not join his service. He stated that he felt pain in his left leg in the change of season and his life span had also been shortened due to the accident. He stated that he was claiming compensation on account of the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss. The copy of the MLC is on record which shows swelling and pain in whole of left knee and the injuries were opined to be simple blunt. However the discharge summary of Sant Parmanand Hospital is on record as per which the petitioner was diagnosed as having fracture tibial condyle (Shazkter Type Suit No. 231/14, 230/14 & 234/14. Page No. 35 of 64 Ajay Jain v Mahinder Singh & Ors.
III). The same also shows that the petitioner remained admitted in hospital from 23.12.2004 to 27.12.2004. Thus the injuries were grievous in nature. PW1 had stated that he had remained confined to bed for one and a half month but during crossexamination he stated that he had not filed any document to show that he was confined to bed for one and half month and had volunteered that he had undergone a major operation of his leg. However even in the discharge summary he was not advised bed rest for any particular period. Thus there is nothing to show that the petitioner remained confined to bed for any particular period and there is also nothing to show that the petitioner had sustained any permanent disability in the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2004, the petitioner is awarded Rs.20,000/ (Rs.Twenty Thousand only) for pain and suffering.
38. It was stated that the petitioner was 40 years of age and it was so stated in the claim petition. The petitioner has placed on record copy of his office identity card Ex.PW1/2 which shows his date of birth to be 24.5.1964 (or 24.8.1964). During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he had brought on that day his original identity card in which his date of birth was mentioned. The copy of the same is Ex.PW1/2. Thus the petitioner would have been more than 40 years on the date of the accident i.e. 12.12.2004. Notice can be taken of the fact that on account of injuries sustained by him the petitioner may not have been able Suit No. 231/14, 230/14 & 234/14. Page No. 36 of 64 Ajay Jain v Mahinder Singh & Ors.
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. 10,000/(Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life.
CONVEYANCE AND SPECIAL DIET
39. The petitioner in paras 9 and 12 of his affidavit Ex.PW1/A had stated that the amount spent on his medical treatment was reimbursed by his office to him, but the expenses which were incurred on the conveyance and special diet were still pending to be claimed. He stated that he was claiming compensation on account of the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 denied the suggestion that he had not spent any money on special diet and conveyance. Although the petitioner has not proved any document to show the expenditure on conveyance, however notice can be taken of the fact that after the accident he was taken to Bharatpur Civil Hospital, (Rajasthan) for medical treatment and thereafter he was treated at Parmanand Hospital, Civil Lines, Delhi and that after discharge from hospital the petitioner would have hired the services of Suit No. 231/14, 230/14 & 234/14. Page No. 37 of 64 Ajay Jain v Mahinder Singh & Ors.
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.3,000/ (Rs.Three Thousand only) would be just and proper towards conveyance charges.
40. The petitioner in paras 9 and 12 of his affidavit Ex.PW1/A had stated that the amount spent on his medical treatment was reimbursed by his office to him, but the expenses which were incurred on the conveyance and special diet were still pending to be claimed. He stated that he was claiming compensation on account of the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 denied the suggestion that he had not spent any money on special diet and conveyance. 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.2,000/ (Rs.Two Thousand only) for special diet.
41. 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.4000/ is awarded towards attendant Suit No. 231/14, 230/14 & 234/14. Page No. 38 of 64 Ajay Jain v Mahinder Singh & Ors.
charges.
LOSS OF INCOME
42. It is the case of the petitioner that he was 40 years of age and in government service with the Ministry of Finance, Department of Revenue, Office of the Commissioner of Customs (Preventive), New Delhi and was earning Rs.18,587/ in addition to government accommodation. It was stated that due to the accident he remained under medical treatment for more than 15 months and was still under medical treatment. PW1 stated that he was bed ridden for 1 ½ months due to the accident and could not join his service. He stated that he was claiming compensation on account of the injuries which he sustained in the accident and for the pain and sufferings, loss of enjoyment, special diet, conveyance besides the financial loss. The petitioner has placed on record copy of his office identity card which is Ex.PW1/2. However he has not proved any document to show how much he was earning or for how much period he had to remain on leave on account of the accident. During cross examination by the learned counsel for the insurance company - respondent No.3 PW1 stated that his monthly salary was Rs.15,000/ to Rs.16,000/ p.m. at the time of the accident. He stated that he had already placed his last pay certificate on file. He denied the suggestion that he was not earning anything at the time of the accident. Thus PW1 stated that his monthly salary was Rs. 15,000/ to Rs.16,000/ p.m. at the time of the accident. He stated that he had Suit No. 231/14, 230/14 & 234/14. Page No. 39 of 64 Ajay Jain v Mahinder Singh & Ors.
already placed his last pay certificate on file. However no such pay certificate is on record or has been proved. PW1 had stated that he had remained confined to bed for one and a half month but during crossexamination he stated that he had not filed any document to show that he was confined to bed for one and half month and had volunteered that he had undergone a major operation of his leg. However even in the discharge summary he was not advised bed rest for any particular period. Thus there is nothing to show that the petitioner remained confined to bed for any particular period though the documents filed by the petitioner show that he remained admitted in hospital from 23.12.2004 to 27.12.2004. The petitioner has also not produced any leave record to show how many leaves he had taken on account of the injuries sustained in the accident. The petitioner has not filed any advice of the doctor by which he was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.15,000/ on account of loss of income including for the period he may not have been able to work and had to remain on leave.
43. There is nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the Suit No. 231/14, 230/14 & 234/14. Page No. 40 of 64 Ajay Jain v Mahinder Singh & Ors.
injuries would reduce his efficiency to work and thereby he would suffer loss of future income. During his examination by the Tribunal the petitioner stated that he is 49 years old at present. He stated that he was a government servant at the time of the accident, and was earning Rs.30,000/ to Rs.35,000/ p.m. He stated that he is still a government servant, and is earning Rs.50,000/ per month. He stated that he did not get any disability in the accident. Thus the petitioner has stated the amount which he was earning at the time of the accident differently at different points of time and no document has been proved in that respect. It is pertinent that the petitioner is still a government servant and there is nothing to show any future loss of income and as such the petitioner cannot be held entitled to any amount towards loss of future income. The total compensation is assessed as under:
Medicines and Medical treatment Rs.2,000/ Pain and suffering Rs.20,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.3,000/ Special Diet Rs.2,000/ Attendant charges Rs.4,000/ Loss of Income Rs.15,000/ TOTAL Rs.56,000/
However the negligence of the petitioner has been apportioned as 50%. Accordingly he would be entitled to only 50% of Rs.56,000/ i.e. Rs.28,000/. Suit No. 231/14, 230/14 & 234/14. Page No. 41 of 64 Ajay Jain v Mahinder Singh & Ors.
Thus the total compensation would amount to Rs.28,000/. COMPENSATION IN SUIT No.234/14 MEDICINES AND MEDICAL TREATMENT
44. The case of the petitioner Neelam Jain is that due to the accident on 12.12.2004 she suffered Intertrochanteric fracture right hip, fracture shaft of humerus left and fracture shaft of femur right. It was averred that the petitioner sustained three major injuries and got operated in the reputed institution and the petitioner was still under medical treatment, firstly the petitioner was admitted in the hospital i.e. Indraprastha Apollo Hospital on 13.12.2004 and was operated and discharged on 20.12.2004, secondly the petitioner was admitted in the hospital Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 7.7.2005 and was operated on 8.7.2005 and was discharged on 11.7.2005 and thirdly the petitioner was admitted in the hospital i.e. Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 9.2.2006 and was operated on 10.2.2006 and discharged on 13.2.2006. The petitioner in paras 28 of her affidavit Ex.PW2/A had stated to that effect. She stated that after the accident she and her family members were removed to the R. B. M. Civil Hospital, Bharatpur, Rajasthan, she was in an unconscious condition when she was admitted to the hospital by PCR van. She stated that she remained unconscious at the hospital during treatment and was referred to Suit No. 231/14, 230/14 & 234/14. Page No. 42 of 64 Ajay Jain v Mahinder Singh & Ors.
Apollo Hospital, Delhi for further treatment and after two days at Apollo Hospital when she got consciousness, it was revealed to her that her only daughter /kid had died in the accident. She stated that she sustained serious and grievous injuries on her different parts of the body being Intertrochanteric fracture right hip, fracture shaft of humerus left, fracture shaft of femur right. The grievous injuries were treated at the hospital and two operations were performed on her body. She stated that she incurred up to Rs.3,00,000/ on the medical treatment/operations and physiotherapy done in the different hospitals, most of the bills had been reimbursed by the office of her husband except Rs.25,000/ approximately. She stated that she also suffered from permanent disability as she still limps while walking after four years of the accident. She stated that the major loss which she and her husband had suffered was that after the death of her young daughter in the accident, they were unable to produce children due to the accident and she suffered from infertility. She stated that after three years of the accident, she decided to produce a baby through test tube process but after spending Rs.35,000/ it had all gone waste. After that on 14.05.2008, again the IVF process was adopted by borrowing the female eggs and it got successful and she had to spend about Rs.1,75,000/ in the said process till date. She stated that she was claiming compensation for the permanent disability in her body, loss of enjoyment, special diet, conveyance besides the financial loss. The treatment papers and bills of Rs.2,37,069.28 are Ex.PW2/1 to Ex.PW2/124. Suit No. 231/14, 230/14 & 234/14. Page No. 43 of 64 Ajay Jain v Mahinder Singh & Ors.
45. The copy of the MLC is on record which shows swelling and pain and tenderness in right lower leg and in frontal region and swelling and pain in left shoulder region. The discharge summary of Indraprastha Apollo Hospital is on record as per which the petitioner was diagnosed as having Intertrochanteric fracture right hip, fracture shaft of humerus left and fracture shaft of femur right. The discharge summaries of Sant Parmanand Hospital are also on record. The same also show that the petitioner remained admitted in the hospitals from 13.12.2004 to 20.12.2004; 7.7.2005 to 8.7.2005 and also from 9.2.2006 to 13.2.2006. Thus the injuries were grievous in nature. There is however nothing to show that the petitioner had sustained any permanent disability in the accident.
46. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that the total expenses incurred on her medical treatment were about Rs.5 lacs out of which Rs.2,75,000/ had already been reimbursed from the department of her husband. She stated that she had already placed the medical documents of RBM Hospital of Bharatpur, Rajasthan. She stated that she had not placed any prescription of the doctor. She denied the suggestion that all the medical bills had already been reimbursed from the department of her husband. She stated that she had not placed any document which shows that due to the accident she suffered permanent disability on her person. She had not placed any prescription of the doctor regarding IVF process. She stated that she had not placed any Suit No. 231/14, 230/14 & 234/14. Page No. 44 of 64 Ajay Jain v Mahinder Singh & Ors.
document which shows permanent disability. She admitted that she had got reimbursed all the amount except only a sum of Rs.25,000/ to Rs.30,000/ at the time of the accident. She admitted that she got reimbursed her medical bills from her family medical insurance policy. She stated that she had already placed all her medical papers. She stated that she had not placed any document of the expenses incurred on physiotherapy for a sum of Rs. 3,00,000/. She had not placed any document which showed that she felt limp at the time of walking. She admitted that after accident she gave the birth to a child on 10.01.2009. She stated that she had already placed the bill of Rs. 35,000/ as well as a sum of Rs.1,75,000/. She denied the suggestion that all the medical bills are manipulated, false and fabricated just to get heavy compensation in the present case. During crossexamination by the learned counsel for the respondents No.1 and 2 PW2 stated that after the accident, she become unconscious and she regained her consciousness in Apollo Hospital after two days of the accident. She stated that she was in the hospital at Bharatpur, Rajasthan after the accident but due to being unconscious she could not tell the name of the accident. She stated that she was again admitted in Sant Parmanand Hospital on 07.07.2005 for the operation of her left arm again as she was not treated well in Apollo Hospital. She was again admitted in the same hospital on 09.02.2006 for the operation of her right leg as she was not treated well in Apollo Hospital.
Suit No. 231/14, 230/14 & 234/14. Page No. 45 of 64 Ajay Jain v Mahinder Singh & Ors.
47. PW2 thus reiterated that after the accident, she become unconscious and she regained her consciousness in Apollo Hospital after two days of the accident. She stated that she was in the hospital at Bharatpur, Rajasthan after the accident but due to being unconscious she could not tell the name of the accident. She stated that she was again admitted in Sant Parmanand Hospital on 07.07.2005 for the operation of her left arm again as she was not treated well in Apollo Hospital. She was again admitted in the same hospital on 09.02.2006 for the operation of her right leg as she was not treated well in Apollo Hospital. The documents placed on record also show the same. PW2 stated that she had not placed any document which shows that due to the accident she suffered permanent disability on her person. She had not placed any document which showed that she felt limp at the time of walking. In the discharge summary of Sant Parmanand Hospital it is mentioned that the petitioner had complained of limp on walking but thus there is nothing to show that the petitioner had sustained any permanent disability due to the accident and she herself stated that she had not placed any document on record which shows that due to the accident she suffered permanent disability on her person.
48. The petitioner in support of her case had produced PW3 in the witness box. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW3 admitted that he had not treated the patient nor he saw the patient. He did not recollect on the day of his examination Suit No. 231/14, 230/14 & 234/14. Page No. 46 of 64 Ajay Jain v Mahinder Singh & Ors.
regarding the patient admitted in the emergency. He stated that he issued the certificate on the request of the patient Neelam Jain's husband. He could not say whether the patient Neelam Jain was admitted in the hospital at that time or having some injury on her person or not. On the next date he had brought the bed head treatment ticket of Mrs. Neelam Jain who was admitted there on 12.12.2004 after injuries. He had also brought the record of Ajay Jain who was also admitted on the same day with injuries. The original Emergency duty register to show the register of duty on 12.12.2004 is Ex.PW3/B and Ex.PW3/C and Ex.PW3/D. PW3 thus admitted that he had not treated the patient nor he saw the patient. He stated that he issued the certificate on the request of the patient Neelam Jain's husband and he could not even say whether the patient Neelam Jain was admitted in the hospital at that time or having some injury on her person or not. However on the next date he had brought the bed head treatment ticket of Mrs. Neelam Jain who was admitted there on 12.12.2004 after injuries and the record of Ajay Jain who was also admitted on the same day with injuries. There is even no dispute that the petitioner was admitted in the hospital on 12.12.2004.
49. The petitioner had also examined PW4 Shri Nand Kishore Sharma, Record Clerk, Sant Parmanand Hospital who had brought the record in her respect dated 07.07.2005 to 11.07.2005 which is collectively Ex.PW4/A1 to A49. He stated that the patient was again admitted on 09.02.2006 till 13.02.2006 and the medical record of the same is collectively Ex.PW4/B1 to Suit No. 231/14, 230/14 & 234/14. Page No. 47 of 64 Ajay Jain v Mahinder Singh & Ors.
B53. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW4 admitted that neither the record was prepared in his presence nor he had personal knowledge of the same. He was not crossexamined on behalf of the respondents No.1 and 2. Thus PW4 had no personal knowledge about the record. PW5 Shri Shekhar Dogra, Record Technician, Apollo Hospital had brought the record of the patient Neelam Jain of her medical treatment in the hospital which is Ex.PW5/A1 to A104. During crossexamination by the learned counsel for the respondents No.1 and 2 he stated that he had brought the original record. He stated that whatever the history mentioned in the discharge summary was correct. He was not cross examined on behalf of the respondent No.3. It is not in dispute that the petitioner had remained admitted in hospitals for different periods and the documents on record show that.
50. PW2 was crossexamined on the expenses on her treatment and she stated that the total expenses incurred on her medical treatment were about Rs.5 lacs out of which Rs.2,75,000/ had already been reimbursed from the department of her husband and she denied the suggestion that all the medical bills had already been reimbursed from the department of her husband. She admitted that she had got reimbursed all the amount except only a sum of Rs. 25,000/ to Rs.30,000/ at the time of the accident and also admitted that she got reimbursed her medical bills from her family medical insurance policy. She stated that she had not placed any document of the expenses incurred on Suit No. 231/14, 230/14 & 234/14. Page No. 48 of 64 Ajay Jain v Mahinder Singh & Ors.
physiotherapy for a sum of Rs.3,00,000/. Thus PW2 had herself admitted that she had got reimbursed all the amount except only a sum of Rs.25,000/ to Rs. 30,000/ and further she had not placed any document of the expenses incurred on physiotherapy for a sum of Rs.3,00,000/. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner has placed on record bills for an amount of Rs.5,700/ approximately. Accordingly the petitioner would be entitled to the amount of the bills. The petitioner would have incurred some expenditure towards medicines and medical treatment even during the subsequent period.
51. PW2 had stated that the major loss which she and her husband had suffered was that after the death of her young daughter in the accident, they were unable to produce children due to the accident and she suffered from infertility. She stated that after three years of the accident, she decided to produce a baby through test tube process but after spending Rs.35,000/ it had all gone waste. After that on 14.05.2008, again the IVF process was adopted by borrowing the female eggs and it got successful and she had to spend about Rs.1,75,000/ in the said process till date. It is pertinent that in neither of the discharge summaries of Indraprastha Apollo Hospital or of Sant Parmanand Hospital or in the other record produced by PW4 and PW5 has it been pointed out that the petitioner suffered from infertility on account of the injuries sustained in the accident. There is nothing whatsoever to show that there was any link between infertility and the accident. During cross Suit No. 231/14, 230/14 & 234/14. Page No. 49 of 64 Ajay Jain v Mahinder Singh & Ors.
examination PW2 stated that she had not placed any prescription of the doctor regarding IVF process. She admitted that after accident she gave the birth to a child on 10.01.2009. She stated that she had already placed the bill of Rs. 35,000/ as well as a sum of Rs.1,75,000/. The petitioner in support of her case had examined PW6 Shri Mahesh Chand, Hospital Attendant, Dr. Kuldeep Jain's IVF and Laparoscopy Centre who had brought the record in her respect dated 22.01.2008 and the photocopies are collectively Ex.PW6/A1 to A6. He had also brought the photocopy of the OPD card and the same is Ex.PW6/B. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW6 admitted that he had no personal knowledge of the record nor the same was prepared by the doctor in his presence. He was not crossexamined on behalf of the respondents No.1 and 2. Thus PW6 had no personal knowledge of the record brought by him. It is significant that even in the said record there is nothing to show that the infertility was on account of the injuries sustained in the accident. It is no doubt true that the petitioner lost her only child in the accident but in the absence of there being anything on record to show a direct proximate nexus between her infertility and the injuries sustained in the accident the petitioner cannot be held entitled to any amount for the expenses incurred on undergoing the IVF process. Thus the petitioner is held entitled to an amount of Rs.10,000/ (Rs.Ten Thousand only) towards medicines and medical treatment including the amount of the bills. Suit No. 231/14, 230/14 & 234/14. Page No. 50 of 64 Ajay Jain v Mahinder Singh & Ors.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
52. The case of the petitioner is that due to the accident on 12.12.2004 she suffered Intertrochanteric fracture right hip, fracture shaft of humerus left and fracture shaft of femur right. It was averred that the petitioner sustained three major injuries and got operated in the reputed institution and the petitioner was still under medical treatment, firstly the petitioner was admitted in the hospital i.e. Indraprastha Apollo Hospital on 13.12.2004 and was operated and discharged on 20.12.2004, secondly the petitioner was admitted in the hospital Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 7.7.2005 and was operated on 8.7.2005 and was discharged on 11.7.2005 and thirdly the petitioner was admitted in the hospital i.e. Delhi Institute of Trauma and Orthopaedics, Sant Parmanand Hospital on 9.2.2006 and was operated on 10.2.2006 and discharged on 13.2.2006. PW2 stated that after the accident she and her family members were removed to the R. B. M. Civil Hospital, Bharatpur, Rajasthan, she was in an unconscious condition when she was admitted to the hospital by PCR van. She stated that she remained unconscious at the hospital during treatment and was referred to Apollo Hospital, Delhi for further treatment and after two days at Apollo Hospital when she got consciousness, it was revealed to her that her only daughter /kid had died in the accident. She stated that the grievous injuries were treated at the hospital and two operations were performed on her body. She stated that she also suffered from permanent disability as she still limps while walking after Suit No. 231/14, 230/14 & 234/14. Page No. 51 of 64 Ajay Jain v Mahinder Singh & Ors.
four years of the accident. She stated that the major loss which she and her husband had suffered was that after the death of her young daughter in the accident, they were unable to produce children due to the accident and she suffered from infertility. The copy of the MLC is on record which shows swelling and pain and tenderness in right lower leg and in frontal region and swelling and pain in left shoulder region. The discharge summary of Indraprastha Apollo Hospital is on record as per which the petitioner was diagnosed as having Intertrochanteric fracture right hip, fracture shaft of humerus left and fracture shaft of femur right. The discharge summaries of Sant Parmanand Hospital are also on record. The same also show that the petitioner remained admitted in the hospitals from 13.12.2004 to 20.12.2004; 7.7.2005 to 8.7.2005 and also from 9.2.2006 to 13.2.2006. Thus the injuries were grievous in nature. There is however nothing to show that the petitioner had sustained any permanent disability in the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2004, the petitioner is awarded Rs.50,000/ (Rs.Fifty Thousand only) for pain and suffering.
53. It was stated that the petitioner was 37 years of age and it was so stated in the claim petition. The petitioner has placed on record copy of CGHS card which shows her date of birth to be 17.5.1967. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that she had not placed her age proof except the CGHS card. She had also Suit No. 231/14, 230/14 & 234/14. Page No. 52 of 64 Ajay Jain v Mahinder Singh & Ors.
placed as proof of her residence i.e. CGHS card. Thus the petitioner would have been more than 37 years on the date of the accident i.e. 12.12.2004. Notice can be taken of the fact that on account of injuries sustained by her the petitioner may not have been able to perform her day to day duties towards her family and on account of the injuries suffered by her the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/ (Rs.Twenty Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards disfiguration or loss of expectation of life. CONVEYANCE AND SPECIAL DIET
54. The petitioner in paras 10 and 12 of her affidavit Ex.PW2/A had stated that she had incurred Rs.20,000/ on conveyance. She stated that she was claiming compensation for the permanent disability in her body, loss of enjoyment, special diet, conveyance besides the financial loss. During cross examination by the learned counsel for the insurance company - respondent No.3 PW2 stated that she had not placed any document for the expenses of Rs.20,000/ incurred on special diet and conveyance. Although the petitioner has not proved any document to show the expenditure on conveyance, however notice can be taken of the fact that after the accident she was taken to Bharatpur Civil Hospital, (Rajasthan) for medical treatment and thereafter she was treated at Indraprastha Apollo Hospital and then at Sant Parmanand Suit No. 231/14, 230/14 & 234/14. Page No. 53 of 64 Ajay Jain v Mahinder Singh & Ors.
Hospital, Civil Lines, Delhi and that after discharge from hospital the petitioner would have hired the services of private conveyance as she would not have been able to drive of her own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
55. The petitioner in paras 10 and 12 of her affidavit Ex.PW2/A had stated that she had incurred Rs.40/ to Rs.55/ to strengthen her body. She stated that she was claiming compensation for the permanent disability in her body, loss of enjoyment, special diet, conveyance besides the financial loss. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that she had not placed any document for the expenses of Rs.20,000/ incurred on special diet and conveyance. Although the petitioner has not proved that she was advised special diet and the discharge summary mentions normal 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.5,000/ (Rs.Five Thousand only) for special diet.
56. Although the petitioner has not produced any evidence to show that she incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on Suit No. 231/14, 230/14 & 234/14. Page No. 54 of 64 Ajay Jain v Mahinder Singh & Ors.
attendant charges and a sum of Rs.8,000/ is awarded towards attendant charges.
LOSS OF INCOME
57. It was averred that the petitioner is 37 years old and a housewife and her anticipated income was Rs.3,000/ p.m. PW2 stated that she was in the profession of teaching as she gave home tuitions to children and earned Rs. 1,61,000/ per year and she was an income tax payee at the time of the accident. However, it is significant that she had stated in the claim petition that she was a housewife and there was no averment to the effect that she was taking tuitions. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that she is post graduate and she could produce the certificate/degree for the same. She stated that she had already placed her income tax return for her earnings. She stated that she had not brought her academic qualification certificate because the same were not traceable due to shifting the residence. She denied the suggestion that she is not postgraduate. She denied the suggestion that the income tax return for the assessment year 200607 is false and fabricated document as there is overwriting in column No.1 gross income total which is Ex.PW2/DX. She stated that at the time of the accident she was not income tax payee as she had no income for income tax purposes. She stated that she had not placed any document which showed that she used to give tuition to the children at the Suit No. 231/14, 230/14 & 234/14. Page No. 55 of 64 Ajay Jain v Mahinder Singh & Ors.
time of the accident. PW2 thus stated that she is post graduate and she could produce the certificate/degree for the same though she had not brought the same. She stated that she had already placed her income tax return for her earnings and she denied the suggestion that the income tax return for the assessment year 200607 is false and fabricated document as there is over writing in column No.1 gross income total which is Ex.PW2/DX (not on record). However it is pertinent that the accident had taken place on 12.12.2004 and the ITR relied upon is for the assessment year 200607 that is, for the period subsequent to the date of the accident and in fact PW2 herself stated that at the time of the accident she was not an income tax payee as she had no income for income tax purposes and as such nothing much would turn on the income tax return. As such PW2 stated that at the time of the accident she was not income tax payee as she had no income for income tax purposes and in the claim petition it was stated that she is a housewife and her anticipated income is Rs.3000/ p.m. She stated that she had not placed any document which showed that she used to give tuition to the children at the time of the accident nor the names of any students have been stated to whom the petitioner was giving tuitions nor any witness has been produced in that respect. As such her income would have to be computed on the basis of minimum wages for a graduate prevalent on the date of the accident which were Rs.3,655/ p.m. approximately. The petitioner has not filed any advice of the doctor by which she was prescribed rest for any specific period. In the absence of any advice of doctor, notice can be taken of the fact that petitioner Suit No. 231/14, 230/14 & 234/14. Page No. 56 of 64 Ajay Jain v Mahinder Singh & Ors.
may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.12,000/ on account of loss of income including for the period she may not have been able to work.
58. There is nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. In fact it was stated in the claim petition that she was a housewife and during crossexamination PW2 had stated that at the time of the accident she was not income tax payee as she had no income for income tax purposes whereas she had taxable income for the assessment year 20062007 as per her own averments. During her examination by the Tribunal the petitioner stated that she is 46 years old at present. She stated that at the time of the accident she was taking tuitions, and was earning about Rs. 15,000/ to Rs.20,000/ per month but the same is contrary to what was stated in the claim petition and even during crossexamination. She stated that at present also she does the same work, but is unable to take tuitions to the same extent, and earns about Rs.5,000/ to Rs.6,000/ per month. However, if the decrease in income was on account of the accident, it cannot be that in the assessment year 20062007 she was able to earn Rs.1,61,000/ whereas now she is able to earn only Rs.5,000/ to Rs.6,000/ per month. She stated that Suit No. 231/14, 230/14 & 234/14. Page No. 57 of 64 Ajay Jain v Mahinder Singh & Ors.
she did not get any any disability in the accident. As such there is nothing to show any future loss of income and the petitioner cannot be held entitled to any amount towards loss of future income.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.10,000/ Pain and suffering Rs.50,000/ Loss of Amenities of life Rs.20,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.8,000/ Loss of Income Rs.12,000/ TOTAL Rs.1,10,000/
Thus the total compensation would amount to Rs.1,10,000/. RELIEF
59. The petitioners in suit No.231/14 are awarded a sum of Rs.3,75,000/ (Rs.Three Lacs Seventy Five Thousand only); the petitioner Ajay Jain in suit No.230/14 is awarded a sum of Rs.28,000/ (Rs.Twenty Eight Thousand only); and the petitioner Neelam Jain in suit No.234/14 is awarded a sum of Rs. 1,10,000/ (Rs.One Lac Ten Thousand Only) along with interest @ 7.5% per annum in view of the decision in Rajesh and others v. Rajbir Singh and Suit No. 231/14, 230/14 & 234/14. Page No. 58 of 64 Ajay Jain v Mahinder Singh & Ors.
others, 2013 ACJ 1403, from the date of filing of the petitions till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. As regards the suit No.231/14, the petitioner No.1 Ajay Jain would be entitled to 20% share in the awarded amount and the petitioner No.2 Neelam Jain would be entitled to 80% share in the awarded amount. The entire share of the petitioner No.1 Ajay Jain be released to him. 50% of the share of the petitioner No.2 Neelam Jain be released to her by depositing it in her savings account at UCO Bank, Patiala House Court, New Delhi and 50% of the amount be kept in FDR for a period of 3 years. The entire amount awarded in suits No.230/14 and 234/14 be released to the petitioners Ajay Jain and Neelam Jain respectively. The respondent No.3 is directed to deposit the award amount by way of crossed cheques directly in bank accounts of the claimants at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. APPORTIONMENT OF LIABILITY
60. The respondent No.1 is the owner of the offending vehicle, respondent No.2 is the driver of the offending vehicle and the respondent No.3 is the insurer in respect of the offending vehicle. It is the case of the respondent No. 3 that the driver of the offending vehicle i.e. the respondent No.2 was not holding an effective driving license to drive a tractor on the date of the accident Suit No. 231/14, 230/14 & 234/14. Page No. 59 of 64 Ajay Jain v Mahinder Singh & Ors.
which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.3 had produced R3W1 in the witness box who stated that they had directed their counsel to send order 12 Rule 8 CPC notice to insured and driver which are Ex.R3W1/2 and 3. The postal receipts are Ex.R3W1/4 and 5. AD cards received back are Ex.R3W1/6 and 7. He stated that they had verified the DL of the driver through their investigator and the same was found invalid. DL verification report is Ex.R3W1/8. He stated that the DL verification report is endorsed with the stamp of RTO. He stated that they had also summoned the driver and owner through Court. He stated that the insured had not provided the documents as per S.134 of MV Act and also had breached the terms and conditions of the policy therefore, the company was not liable to pay any compensation. He was not crossexamined on behalf of the petitioners and the respondents No.1 and 2.
61. It is seen that several efforts were made to summon the witness from the RTO, Bharatpur but no witness appeared though a report was received from the Bharatpur Transport Authority. The verification report and the report received from the Transport Authority, Bharatpur both show that the driving license of the respondent No.2 was valid only for driving a motorcycle and LMV and the same is also borne out by the copy of the DL of the respondent No.2 as per which he was licensed to drive only a motorcycle and light motor vehicle and the license was valid till 2021. In the letter dated 12.12.2012 Suit No. 231/14, 230/14 & 234/14. Page No. 60 of 64 Ajay Jain v Mahinder Singh & Ors.
received from the Transport Authority, Bharatpur it was stated to the same effect that the license of the respondent No.2 was valid for driving a motorcycle and for LMV. A 'light motor vehicle' as per Section 2(21) of the Act means a transport vehicle or omnibus the gross vehicle weight of either of which or a motorcar or tractor or roadroller the unladen weight of any of which, does not exceed 7500 kilograms whereas a 'heavy goods vehicle' as per Section 2(16) of the Act means any goods carriage the gross vehicle weight of which, or a tractor or a roadroller the unladen weight of either of which, exceeds 12,000 kilograms. As per the RC of the offending vehicle in the present case the class of vehicle was not specifically stated and the gross unladen weight of the vehicle was shown as 1470 kgs. As such it would not be a heavy goods vehicle but a light motor vehicle. The Hon'ble Supreme Court in National Insurance Company Limited v. Swaran Singh and others AIR 2004 SC 1531 held that the words 'effective license' used in Section 3 cannot be imported for subsection (2) of Section 149 of the Act and the words 'duly licensed' used in subsection (2) of Section 149 are used in the past tense. It was also held that the insurance company, with a view to avoid their liability, must not only establish the available defence but must also establish breach on the part of the owner of the vehicle. Following the said observations, in National Insurance Company Limited, Bangalore v. Siddu C.M. and another ILR 2004 Kar (DB) it was held that the mere fact that the driver was not authorised to drive the type of vehicle which he was driving at the time of the accident would not be a defence to avoid liability of the award passed Suit No. 231/14, 230/14 & 234/14. Page No. 61 of 64 Ajay Jain v Mahinder Singh & Ors.
against a third party in respect of a compulsorily insurable claim as the provisions of compulsory insurance indisputably have been made inter alia with a view to protect the right of a third party. Thus a decision has to be taken to find out whether the fact that the driver possessing the license to drive one type of vehicle but found driving another type of vehicle was the main or fundamental or contributory cause of the accident. In the instant case the offending vehicle had hit the car of the petitioners but the fact that the driver was driving another type of vehicle cannot be said to be the main cause of the accident and the petitioner Ajay Jain who was driving the car has also been found to have contributed to the happening of the accident. As such there is no merit in the contention of the respondent No.3 that the respondent No.2 was driving the offending vehicle without holding a valid driving license at the time of the accident.
62. The respondents No.1, 2 and 3 are accordingly held jointly and severally liable. Respondent No.3 i.e. New India Assurance Company Limited being the insurance company in its reply had admitted that the tractor No.RJ051R5868 was insured in the name of Shri Mahender Singh vide policy No.330602/31/04/01/00003596 valid from 05.07.2004 to 04.07.2005 as a miscellaneous and special type of vehicle. Hence, the respondent No.3 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.3 being the insurer is directed to deposit the award amount in UCO Bank, Suit No. 231/14, 230/14 & 234/14. Page No. 62 of 64 Ajay Jain v Mahinder Singh & Ors.
Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 7.5% from the date of filing of the claim petitions till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
63. Nazir to report in case the cheques are 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 petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, 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 petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their 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 15.12.2014.
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 Court, New Delhi. Suit No. 231/14, 230/14 & 234/14. Page No. 63 of 64 Ajay Jain v Mahinder Singh & Ors.
File be consigned to record room.
Announced in open court
on this 15th day of September, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No. 231/14, 230/14 & 234/14. Page No. 64 of 64
Ajay Jain v Mahinder Singh & Ors.