Narinder Kumar vs Ravinder Mahajan And Another

Virender Singh, J

Appellant has filed the present appeal, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘M.V. Act’) against the award dated 06.11.2012 passed by learned Motor Accident Claims Tribunal (I), Kangra at Dharamshala, H.P. (hereinafter, referred to as the ‘learned MACT’) in MACP(RBT) No. 107-N/II-2010/2007, titled as Narinder Kumar vs. Ravinder Mahajan and another.

By way of award dated 06.11.2012, the learned MACT has awarded compensation to the tune of Rs.1,49,765/-, along-with interest at the rate of 9% per annum, from the date of filing the petition, till realization of the entire amount.

The parties, to the present lis, are hereinafter, referred to, in the same manner, as were referred to, by the learned MACT.

Brief facts, leading to the filing of the present appeal, before this Court, may be summed up as under:-

1. Petitioner Narinder Kumar has filed claim petition, under Section 166 of the M.V. Act against the respondents being owner-cum-driver, as well as, insurer of vehicle No. HP-37-0344 (hereinafter referred to as the ‘offending vehicle’).

2. The petitioner has filed this petition on the ground that on 12.12.2006 at about 7.00 p.m., he was coming from Pathankot side to Shahpur and when, he reached at Shahpur, the offending vehicle being driven by its driver, reached there and hit the motorcycle of the petitioner. Resultantly, the petitioner fell down along-with motorcycle on the road and his right leg has been fractured. He was firstly taken to CHC, Shahpur from where, he was referred to Dr. Rajendra Prasad Medical College, Hospital, Dharamshala for further treatment where, he remained admit for 17 days and was operated upon twice. The iron rod and plate shaft were inserted in his leg. After the discharge, petitioner visited the doctor for follow up.

4.3. The information regarding the accident was given to police of PS, Shahpur. The petitioner has asserted his age as 28 years and stated that he was earning Rs.17,000/- per month. According to the petitioner, he has become disabled and he was forced to spend a sum of Rs.50,000/- on his treatment.

On the basis of above facts, he has sought the compensation of Rs.10,00,000/- from the respondents.

When put to notice, the claim petition has been contested by the respondents.

Respondent No.1 has filed reply, in which, the factum of accident has not been denied, but, according to him, the same has been caused due to the rashness and negligence of the petitioner himself. The contents of the rest of the paras have been denied.

1. Elaborating the alleged rashness and negligence of the petitioner, it has been pleaded that the petitioner could not control his motorcycle and the same had skidded and thereafter, struck against the stationary vehicle in question.

8 The Insurance-Company has filed its reply by taking preliminary objections that the driver of the offending vehicle was not holding a valid and effective driving licence to drive the vehicle and the offending vehicle was being plied in violation of the terms and conditions of the Insurance policy, there is collusion between the petitioner and respondent No.1, petition is not maintainable and the petition is bad for non-joinder of necessary parties.

8.1. On merits, the factual position as asserted in the petition has been denied mainly, for want of knowledge.

The petitioner filed rejoinder to the reply filed by respondent No.1, denying the factual position, by virtue of which, the claim petition has been contested.

From the pleadings of the parties, the following issues were framed by the learned MACT on 07.03.2009:-

Whether the petitioner suffered injuries on his person on account of rash and negligent driving by respondent No.1 while driving HP-37-0344 on 12.12.2006 ? OPP.

If issue is proved, to what compensation the petitioner is entitled & from whom? OPP.

Whether the respondent No.1 was not holding valid and effective driving licence at the time of accident? OPR.

Whether the offending vehicle was being plied without fitness & registration certificate? OPR.

Whether the offending vehicle was not insured with the respondent No.2, if so its effect? OPR.

Relief.

Thereafter, the parties to the lis were directed to adduce evidence.

The learned MACT after hearing the learned counsel for the petitioner, as well as, learned counsel representing the respondents, has partly allowed the claim petition by granting the following relief: -

For the aforesaid findings, the petition is allowed with costs, assessed at Rs.500/- and the petitioner is awarded a sum m of Rs.1,49,765/- (Rupees one lac, forty nine thousand, seven hundred and sixty five only), inclusive of the amount of interim compensation, already awarded if any, along with interest at the rate of 9% per annum from the date of the petition ie 9. 7.2007 till realization of the entire amount to be paid by respondents No 1, who in turn would be indemnified by the respondent No.2/Insurance company Memo of costs be prepared accordingly File after due completion be consigned to record room.

Feeling aggrieved from the said award, present appeal has been preferred, on the ground, that the learned MACT has awarded only a meagre amount as compensation, whereas, the amount, on account of permanent disability, pain and suffering and loss of future earning, has not been awarded. The multiplier, which has been applied, in the present case, is also stated to be wrong. The learned MACT has not considered the fact that the petitioner remain hospitalized from 12.12.2006 to 29.12.2006, 01.05.2008 to 29.05.2008, 19.09.2008 to 26.09.2008 and 11.12.2008 to 18.12.2008, as such, the said period of hospitalization has not been considered. The disability, has not been considered by the learned MACT. The learned MACT has not considered the fact that the petitioner was residing at a distance of 45 kilometers from the hospital and as such, he was forced to spend the amount of hiring taxi. Similarly, the amount for hiring attendant has not been granted to him.

On the basis of above facts, a prayer has been made to enhance the award by modifying the same by granting the compensation, as prayed for.

Per contra, the prayer, so made, by learned counsel for the petitioner has been opposed by Mr. Praneet Gupta, learned counsel appearing for respondent No.2-Insurance Company on the ground that the learned MACT has rightly awarded the amount of compensation, which does not require any interference by this Court.

In order to decide the controversy involved in the present case, it would be just and appropriate for this Court to discuss the oral, as well as, documentary evidence, adduced by the parties, before the learned MACT.

The petitioner has examined Dr. Satikshan Mahajan as PW-2, who has deposed that on 12.12.2006, he was present in Shahpur market. One motorcycle was found coming from Pathankot side. He was proceeding towards Dharamshala. One vehicle came on the main road from a narrow lane. The said vehicle was reversed by its driver and the said vehicle had hit the driver of the motorcycle. He was taken to the hospital in the same vehicle. According to him, the accident had taken place due to negligence and fast speed of the said vehicle. The statement of this witness was not recorded by the police nor he could disclose as to who had lodged the FIR. The motorcycle was driven by the petitioner himself. He has admitted that at the place of accident, road was so wide that 2-3 vehicles could pass through there.

PW -3 Narender Kumar is the petitioner who has filed his examination-in-chief, which is based upon the assertions as made in the claim petition.

In cross-examination, he has denied that the offending vehicle was not in the middle of the road. However, admitted that the said vehicle had to enter on the road from the left side of this witness. Rest, he has denied all the suggestions, which were put to him by learned counsel for the respondent.

PW-4 Dr. Shivdarshan Singh has deposed that on 12. 06.2007, a Medical Board was constituted and he was one of the members of the same. Dr. Subhash Thakur was the Chairman of the same. This witness has been associated as Ortho specialist. The petitioner was examined by the Board on 12.06.2007 for the purpose of disability. After examination, the permanent disability of 40% was found on the person of the petitioner and in this regard, certificate was issued which is Ext. PW-4/A. He has categorically stated that due to disability, as mentioned in the certificate Ext. PW-4/A, the person could not drive the scooter/motorycycle and this disability will affect the day-to-day working of the injured and he will not squat. His movability will also be effected due to the disability. He has admitted that if a person, while driving the motorcycle, dashed against the stationery vehicle, then, this kind of disability could be caused.

PW-5 Head Constable Vijay Kumar, Police Station, Shahpur has proved the copy of FIR No. 171/2006 dated 12.01.2006 under Sections 279, 337 and 338 IPC. The said FIR has been registered against Ravinder Mahajan. He has proved the FIR as Ext. PW-5/A. He has admitted that accused Ravinder Mahajan has been acquitted on 25.02.2009.

PW-6 Dr. Sanjay Dhiman proved the MLC of the petitioner as Ext. PW-6/A. After providing first aid, the petitioner was referred to Dr. Rajender Prashad Medical College, Tanda. Like PW-4, this witness has also admitted that the injuries on the person of injured could be caused if the vehicle is skidded on the road.

To rebut this evidence, respondent No.1 appeared in the witness box as RW-1. According to him, on 12. 12.2006, the offending vehicle met with an accident with the motorcycle of the petitioner. He has admitted that he was reversing the vehicle to the main road, but, denied that he was at fault.

So far as the documentary evidence is concerned, Ext. P-1 to Ext. P-4 are the discharge cards, Ext. P-5 is the OPD slip, P-6 is the disability certificate, Ext. PW-3/A-1 to Ext. PW-3/A-58 are the cash memo of medical bills, Ext.PW-4/A is the original disability certificate, Ext. PW-5/A is the copy of FIR, Ext.RW-1/A is the copy of driving licence, Ext. RX is the insurance policy, Ext. PW-6/A is the copy of MLC of the petitioner, Ext. RW-1/A is the statement of Baldev Singh recorded in MAC petition No. 16-K/II/2009 titled as Miss Kusum vs. M/s Dewan Parivahan and others, Ext. RY-2 is the statement of Ashok Diwan, Ext. RX-1 is the statement of Suresh Kumar, Ext. RX-2 is the statement of Hem Raj, Ext. RX-3 is the statement of Sushma Devi and Ex. R-X is the insurance policy. Apart from this, statement of D.C. Varshney, Accounts Officer, SBL Private Limited has been placed on record, who has been examined by the Local Commissioner. He has proved the salary certificate of petitioner Narinder Singh as Ext. P-C, according to which, he is drawing Rs.11,230/- per month.

This is the entire evidence, led by the parties before the learned MACT.

Perusal of the award passed by the learned MACT shows that the learned MACT has not considered the effect of the disability on the person of the petitioner while assessing the amount of compensation. The provisions of M.V. Act are beneficial piece of legislation and strict Rule of evidence is not applicable. In the proceedings under the M.V. Act, the entitlement of the petitioner for claim, as well as, the liability of the tort feasor is to be fixed on the basis of preponderance of probabilities. Strict Rule of evidence is not applicable. It is a sort of inquiry. The endevaour of the Tribunal/Court is to award the ‘just compensation’.

By examining the doctors, the petitioner has proved the disability certificate and as per the deposition of Accounts Officer of SBL Private Limited, his services were terminated in the year 2007. The accident in question had taken place on 12.12.2006. Meaning thereby, his services were terminated after the accident in question.

It is no longer res-intergra that while deciding the question of entitlement of the petitioner for claim under M.V. Act, the same has to be assessed under the various heads. Since, the learned MACT has not considered the effect of the disability on the earning capacity of the petitioner, as such, the said exercise is to be done by this Court, keeping in view the object of the law, according to which, it is beneficial piece of legislation.

On the basis of evidence so adduced, this Court now proceeds to assess the amount of compensation, for which, the petitioner is entitled under various heads as under:-

NON PECUNIARY DAMAGES

Pain and Sufferings:

Petitioner has asserted in the claim petition that after the accident, he was firstly taken to CHC Shahpur, from where, he was referred to Dr. Rajender Prasad Medical College and Hospital, Tanda, where, he remained admit for 17 days and operated upon twice. By examining PW-6, this fact has been probabilised that after the accident, on 12.12.2006 at about 7.15 p.m., petitioner was taken to CHC Nurpur, where he was medically examined vide MLC Ext. PW-6/A. In the MLC Ext. PW-6/A, a lacerated wound on the right lower leg 3cmX1cm incised was found on the person the petitioner. PW-4 has proved the disability as 40% vide disability certificate Ext. PW-4/A.

The petitioner has simply tendered the discharge card. The doctor, who has treated him and issued these cards, has not been examined. In such situation, without the formal proof, these documents could not be taken into consideration nor these documents have been shown to PW-4 and PW-6, who had given the first aid to the petitioner, as well as, assessed the disability on his person. But, this does not mean that the petitioner was not admitted in the hospital. In the petition, he has simply mentioned period of his hospitalization as 17 days. His deposition in the examination-in-chief with regard to his subsequent admission in the hospital is not liable to be considered as the same is beyond the pleadings. No efforts have been made by the petitioner to get his claim petition amended in this case, as such, it can be said that the petitioner might have admitted for about 17 days due to the injuries suffered by him. The said period of hospitalization must be painful and traumatic for him, as such, petitioner is entitled for a sum of 17 X Rs.2,000= Rs.34,000/-, under the head ‘pain and sufferings’.

Loss of Enjoyment of Life:

The period of hospitalization of the petitioner is held to be about 17 days and he might have taken atleast two months for convalescence, as, he had suffered 40% disability, due to the injuries suffered by him, in the accident in question. Meaning thereby, during the period of 77 days, the petitioner could not enjoy the life of a normal human being. Although, the doctor has deposed about the disability as 40% but, the said fact is to be considered while assessing the amount of compensation on account of loss of income and earning capacity. Considering the disability under both the heads would amount to double enrichment, which is prohibited under the law. For those 77 days, the petitioner is held entitled to compensation of Rs.50,000/-.

Shortened Expectation of Life:

No evidence has been led by the petitioner to prove that due to injuries/disability sustained/suffered by him, his life span has been shortened. As such, no amount of compensation is being awarded to the petitioner under this head.

PECUNIARY DAMAGES:

Loss of Earning and Earning Capacity:

The period of hospitalization and convalescence is held to be 77 days. The services of the petitioner were terminated by his employer as deposed by the Accounts Officer of SBL Private Limited.

The age of the petitioner has been pleaded as 28 years. He, at the time of accident, was working with SBL Private Limited. When, he was working with SBL Private Limited, his salary was Rs.10,353/-. The salary certificate is on record as Ext. P-C. This document has been proved by Sh. D.C. Varshney, Accounts Officer, SBL Private Limited. He has also deposed that the net salary of Narinder Singh Thakur was Rs.11,220/- per month and his services were terminated in the year 2007. The percentage of disability has been proved by PW-4 as 40% and the category of disability has been mentioned in the certificate Ext. PW-4/A as ‘locomotor impaired’. PW-4, who has proved this document, has categorically deposed that due to disability, as mentioned in the certificate Ext. PW-4/A, the petitioner cannot drive the motorcycle, scooter and it will also affect upon his day-to-day working.

In this background, the loss of earning capacity has to be assessed. His earning, at the time of accident was found to be Rs.11,220/- per month and considering the disability, which has been assessed as 40% by PW-4, his monthly loss of earning capacity comes to Rs.11,220X40%=Rs.4488/- per month. Keeping in view the age of the injured, the multiplier of 17 would be the appropriate multiplier. Thus, the compensation on account of loss of earning capacity comes to Rs.4488X12X17= Rs.9,15,552/-.

There is no evidence on record that during the period of hospitalization, as well as, during the period of convalescence, the employer of the petitioner had not paid his salary. The person, who has proved the salary certificate of the petitioner, has simply deposed that his services were terminated in the year 2007. Since, the salary certificate pertains to month of July, 2007, as such, it can be said that till July, 2007, the petitioner was getting the salary from his employer. As such, no amount of compensation is awarded to the petitioner under the head “loss of earnings”.

Medical expenses:

The petitioner is held entitled for the amount as mentioned in bills Ext. PW-3/A-1 to Ext.PW-3/A-58. Considering the fact that these documents are original medical bills and the petitioner has suffered 40% disability, as such, the petitioner is held entitled for the same, which comes to Rs.49,766/-.

Transportation charges:

Considering the fact that after the accident, the petitioner was firstly taken to CHC Shahpur, from where, he was referred to Dr. Rajinder Prasad Medical College and Hospital, Dharamshala where he remained admit as deposed by PW-6, as well as, considering the percentage of disability, this Court is of the view that the petitioner might have spent atleast a sum of Rs.50,000/- on transportation charges, for which, he is held entitled.

Special diet and attendant charges:

The period of hospitalization and convalescence is held to be 77 days and during that period, the petitioner might have taken the special diet and might have required the services of an attendant, as such, he is entitled to a sum of Rs.77X200=Rs.15,400/-.

Considering the said fact, the amount, which has been assessed by the learned MACT as compensation is held to be on the lower side and the same is liable to be enhanced.

Considering all these facts, the petitioner is entitled for a sum of Rs.11,14,718/- (Rs.34,000/-+Rs.50,000/-+ Rs.9,15,552/-+ 49,766/-+50,000/-+15,400/-) as compensation. The learned MACT has only awarded a sum of Rs.1,49,500/- whereas, he is entitled for a sum of Rs.11,14,718/-

In view of the above, the appeal is allowed and compensation awarded by the learned MACT is enhanced to Rs.11,14,718/ -, from Rs.1,49,500/- along-with the interest, as awarded by the learned MACT.

The appeal is disposed of in the aforesaid terms. Pending applications, if any, also stand disposed of. There shall be no order as to costs.

Before parting with the judgment, this Court deems it appropriate to point out the manner, in which, the case files are being consigned to the record room, after the decision of the case.

In Volume-4 of High Court Rules and Orders, Chapter-16-part E deals with the manner as to how the record is to be consigned to the record room. In this case, when the file was consigned to the record room, the concerned Ahlmad, has not adhered to the directions, as contained in the High Court Rules and Orders. The relevant Rules 4 to 6 of Chapter 16 are reproduced as under:-

Records to be divided into two parts A and B. - All other Civil records and all Criminal records shall be arranged in two parts A and B.

Papers included in parts A and B of civil record. In the case of such other Civil Records Part A shall contain the following paper:-

(a) In original cases, other than those to which Rule 3 applies, heard by any Court other than a Court of Small Causes.

Those papers specified in Rule 3 as contained in Parts A and A(i)

(b) In cases heard by a Court of Small Causes-

(1) The index of papers

(2) The order sheet or chronological abstract of orders.

(3) The plaint with the papers annexed thereto.

(4) Any cross-claim set up by the defendant by way of set- off.

(5) All documents received by the Court during the trial as evidence between the parties.

(6) Any award of arbitrators, or deed of withdrawal, compromise or confession of judgment.

(7) The judgment or other final order.

(8) The decree.

(9) All notes in the handwriting of the Judge.

(10) Any application for review of judgment, or for a new trial, with the Court's orders thereon.

(11) Any order passed by the High Court as a Court of reference or revision.

(12) All orders passed in execution proceedings with all applications, writs of which service has been affected, notices, reports and returns relating thereto

(13) All receipts and acknowledgements filed in execution proceedings.

(14) Written statements of parties.

(15) Processes by which service is effected on the defendants in suits decided ex parte.

(16) Powers of attorney of Counsel or agents of parties.

(c) In appeals cases-

(1) The index of papers.

(2) The order sheet or chronological abstract of orders.

(3) The petition of appeal.

(4) Copies of judgments and decrees of Lower Courts.

(5) Any cross-objection filed by the respondent under Order XII, Rule 22 of the Code of Civil Procedure.

(6) Issues referred for trial by the Appellate Court, with the evidence and findings thereon.

(7) Commissioner's proceedings held thereunder, and reports of Commissioners.

(8) Any additional evidence, oral or documentary admitted by the Appellate Court under Order XLI., Rule 27, of the Code of Civil Procedure.

(9) Application to the Appellate Court to refer to arbitration, references, the award or other final return of the arbitration with the proceedings, depositions and documents submitted therewith and any applications to set aside they award, with the Court's order thereon.

(10) Deeds of withdrawal, compromise or confession of judgment

(11) The judgment or other final order.

(12) The decree of the Appellate Court.

(13) All notes in the handwriting of the judge.

(14) Applications for review of judgment, with the Court's orders thereon.

(15) Any judgment and decree of a superior Court of appeal.

(16) Powers of attorney of Counsel or agents of parties. Part B shall consist of all papers not included in Part A.

Papers included in Parts A and B of Criminal record. In the case of criminal records Part A shall contain the papers noted below:-

(a) In original cases tried by a Court of Session –

(1) The index of papers.

(2) The order sheet or chronological abstract of order.

(3) The charge, original and as amended by the Sessions Judge.

(4) All depositions of witnesses and statements of accused persons, including depositions and statements transferred from the file of the Committing Magistrate.

(5) All documentary evidence.

(6) The final order

(7) The verdict of the jury.

(8) All notes in the handwriting of the Judge.

(9) The judgment or order of the High Court as a Court of Appeal, reference or revision.

(10) Warrants returned after execution of sentence.

(11) All proceedings relating to the realization of fines.

(b) In Magisterial inquiries and trials –

(1) The index of papers.

(2) The order sheet or chronological abstract of orders.

(3) The final Police report (Challan), or petition of complaint.

(4) All depositions of witnesses and statements of accused persons.

(5) All documentary evidence.

(6) The charge, where a formal charge is drawn up.

(7) The final order of the Court.

(8) All notes in the handwriting of the Magistrate.

(9) The judgment of the Appellate Court, if any.

(10) The judgment of the High Court in revision, if any.

(11) Warrants returned after execution of sentence.

(12) All proceedings relating to the realization of fines.

(13) Bonds for good behaviour taken under section 110 of the Code of Criminal Procedure.

(c) in appeals cases –

(1) The index of papers.

(2) The order sheet or chronological abstract of orders.

(3) The petition of appeal.

(4) Copy of the judgment of the Lower Court.

(5) Any additional evidence taken under section 428 of the Code of Criminal Procedure.

(6) The final order of the Court.

(7) All notes in the handwriting of the Judge.

Part B shall consist of all papers not included in Part A.

Non-compliance of the said Rules has been highlighted by this Court, keeping in view, the manner in which, the record has been consigned in this case. Hence, it is high time to issue directions to the District Judiciary to strictly adhere to the relevant provisions, referred to above, while consigning the files to the record room, after its decision. Ordered accordingly.

Record be sent back.