Full Text
HIGH COURT OF DELHI
MOHD ZAKIR .....Appellant
Through: Mr. S.D. Wadhwa, Advocate,
Through: Ms. Manpreet Kaur, Advocate for R-1.
JUDGMENT
1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as the “Act”) has been filed on behalf of the appellant challenging the judgment dated 20th February, 2016 (hereinafter as the “impugned order/award”) passed by the learned Motor Vehicles Claims Tribunal, South East District, Saket Court, New Delhi (hereinafter as the “Tribunal”) in Suit No. 335/14, seeking the following reliefs – “In the above premises, it is, therefore, respectfully prayed that this Hon’ble Court may graciously be pleased to kindly uphold the grounds of appeal for the appropriate modification of the Award passed by the Tribunal below so that the three cardinal principles of Equity, Justice, Good Conscience and fair-play are properly met in the real sense of the terms. Any other or further relief deemed fit and proper in the facts and circumstances of the case may also kindly be passed in favor of the petitioner and against both the respondents……’jointly and severally’.”
FACTUAL MATRIX
2. On 1st June, 2004, at about 9:45 AM, Mr. Mohd. Zakir, the appellant herein/claimant before the learned Tribunal, was riding his Chetak Scooter bearing registration number DL-3S-D-6493 along with his brother-in-law, Mr. Mohd. Usman, from Sangam Vihar to Subhash Camp. When the claimant reached near one shop namely Munna Auto Welder, Shanny Bazar, Devli, New Delhi, one scooter bearing registration number DNF-7071 (hereinafter as the “offending vehicle”), coming from the opposite direction, collided with the claimant‟s vehicle. As an effect, the claimant and the pillion rider fell from the scooter and the claimant sustained grievous head injuries. Consequently, the claimant was immediately moved to the Batra Hospital, Delhi for his medical treatment.
3. Thereafter, an FIR bearing number 406/2004 was registered with Police Station - Sangam Vihar and upon completion of the investigation, chargesheet was registered against the respondent no.1/driver under Sections 279/338 of the Indian Penal Code, 1860.
4. Subsequently, the claimant filed a claim petition bearing Suit NO. 335/14 before the learned Tribunal seeking compensation for the grievous injuries sustained by him in the accident. In its impugned order, the learned Tribunal held that the respondent no.1/ driver was driving in a rash and negligent manner, thereby, causing grievous injuries to the appellant/claimant, and awarded a compensation of Rs. 2,72,922/- with an interest @ 9% to be payable by the respondent no. 1 from the date of filing of the said claim petition till its realisation.
5. Aggrieved by the impugned award, the appellant has filed the instant appeal seeking enhancement of the compensation amount.
PLEADINGS BEFORE THIS COURT
6. By way of filing this instant appeal, the appellant/claimant has challenged the impugned award on the following grounds:
7. Countering the instant appeal, the respondent no.1 has filed a reply to the same and the relevant extracts of the same are as follows:
hence till date he is not in position to pay/deposit the said amount. ***
7. Further it is also pertinent to mentioned that doctor has diagnosed Abdominal Tuberculosis and PW-5 Dr Pradeep Gupta Sr Resident HAH Centenary Hospital Hamdard Nagar clearly stated that which has no relation with any kind of physical disability or accidental injuries the same is due to bacterial infection. Copy of chief is enclosed as Annexure-C. ***
10. Further it is pertinent to mention that the respondent No.l was working with Respondent No.2 from January 2004 and he worked upto October 2006 and said scooter Registration No.DNF 7071 was used for attending the complaint and the documents i.e. form 29 & 30 are filed and prepared by the respondent No.2 himself after the information of the accident as respondent No.l is illiterate and only knowing to write his name in Hindi and English. Hence it is humble submission of the Respondent No.l that the respondent No,2 name may be included liable for the said compensation.
REPLY ON THE GROUND OF APPEAL ON MERIT:
2. That content of Para No. C & D of the petition under reply is wrong and specifically denied that petitioner is incapacity for working physically it is also wrong and specifically denied that petitioner has suffered totality suffered a loss of amenities, enjoy of life and it is also wrong and specifically denied that suitably enhancing the all round compensation under all these sub-head sunder socially beneficial legislation. Further, it is submitted that petitions is still running a meat shop from his house and such evidence can be brought by the respondent No.l if Hon'ble Court permit.
3. That content of Para No. E of the petition under reply matter of record and it is true that respondent No.l is dwelling in Jhugi cluster and working as plumber and struggling for his and his family livelihood to make his two ends meet.
4. That content of Para No. E of the petition under reply is wrong and specifically denied that any urgent need to carry out substantial rectification/appropriate modification in the matter of granting the compensation. Further respondent No.1 respectfully submit that he is poor person residing in Jhugi and did not have such a big amount and not in position to pay the awarded compensation sum of Rs.2,47,922/- along with interest @ 9% per annum. Respondent No.l in the folded hand prayed to the Hon'ble Court kindly consider the position of the respondent No.2 before passing any verdict in the present petition.”
8. The written submissions filed on behalf of the appellant are also taken on record. However, no reply was filed on behalf of the respondent no.2 and therefore, this Court is adjudicating the instant appeal on the basis of the material placed on record.
9. Learned counsel appearing on behalf of the appellant submitted that the learned Tribunal erred in granting meagre amount of compensation under all the sub-heads of the compensation, without taking into account the grievousness of the injuries sustained by the appellant.
10. It is submitted that at the time of passing the impugned order, the learned Tribunal failed to appreciate that the appellant herein incurred 75% permanent disability vis-à-vis his whole body, however, the learned Tribunal erroneously considered that the appellant sustained 38% functional disability.
11. It is submitted that the impugned order passed by the learned Tribunal is not in accordance with the settled principles of law as it did not adequately compensate for the injuries sustained by the appellant, who has been suffering from cognitive impairment due to the accident and seems to be mentally deranged, thereby experiencing psychiatric outbreaks.
12. Learned counsel appearing for the appellant submitted that the permanent disability incurred by him has incapacitated him in such a way that it is affecting his earning capacity, which further affects his loss of amenities, enjoyment of life, income for the duration of treatment as well as the future income, and in view of the same, the appellant is entitled to get an enhancement of the compensation amount under all the sub-heads.
13. It is further submitted that if the Courts cannot restore the mental and physical sufferings of the appellant, a fair, reasonable and adequate compensation is to be awarded in order to mitigate such sufferings and financial problems.
14. It is submitted that the appellant is entitled to overall enhancement of the compensation award as the medical documents and reports on record indicate that the appellant has incurred grievous injuries to the head, thereby affecting his physical as well as psychiatric activities. It is submitted that the appellant is additionally entitled to compensation under the heads of „loss of care and guidance for minor children‟ and „loss of consortium‟ as the children and spouse of the appellant are affected by the inability of the appellant to share affection and companionship with them.
15. It is submitted that upon relying on various case laws of the Hon‟ble Supreme Court, the Courts are entitled to grant a liberal compensation to upkeep the dignity and hassle-free life of the claimant.
16. It is submitted that the learned Tribunal failed to make the respondent no.2 liable for paying the compensation amount along with respondent no.1, as the former is a registered owner of the offending vehicle and therefore, is liable to pay the compensation amount jointly and severally.
17. It is submitted that the learned Tribunal has perused the testimonies of the witnesses in detail in the impugned order, which also includes the averments made with respect to the liability of registered owner. However, the said issue on liability has not been discussed by the learned Tribunal while passing the impugned order and has failed to make the respondent no. 2 liable to pay the compensation amount.
18. It is submitted that as per the settled position of law, the registered owner of a vehicle is bound by law to visit the Registering Authority for formally transferring the vehicle in the name of the purchaser after the completion of the sale transaction.
19. It is submitted that the respondent no.2 is jointly and severally liable along with the respondent no.1 to pay the overall compensation awarded to the appellant/ claimant.
20. Therefore, in view of the foregoing submissions, it is submitted that the instant appeal may be allowed and the compensation granted vide the impugned order may be enhanced. (on behalf of the respondent no. 1)
21. Per Contra, the learned counsel appearing on behalf of the respondent no.1/driver vehemently opposed the instant appeal submitting to the effect that the same is liable to be dismissed being devoid of any merits.
22. It is submitted that the respondent no. 1 has filed an appeal bearing no. MAC APPL.763/2016 against the impugned order as the liability of the driver was determined without taking into account the facts and circumstances, and the said appeal is pending for adjudication before this Court.
23. It is submitted that the instant appeal filed by the appellant is bereft of any merits as the appellant is not entitled for an overall enhancement of the compensation under the sub-heads.
24. It is submitted that the learned Tribunal erred in considering the medical expenses emanating in the year 2010, wherein the appellant underwent treatment of abdominal tuberculosis, which has no relation with respect to the injuries sustained in the accident. The same has also been testified by PW – 5, Dr. Pradeep Gupta, Senior Resident at HAH Centenary Hospital, Hamdard Nagar, New Delhi, and therefore, the same cannot be taken into account for compensating the appellant‟s medical expenses.
25. It is submitted that the respondent no.1 is economically and socially underprivileged, who is dwelling in a Jhuggi cluster and works as a plumber, which makes it difficult for him to make his two ends meet on a daily basis. Therefore, it is submitted that the respondent no.1 cannot pay the compensation of Rs. 2,47,922/- along with an interest @ 9% per annum.
26. In view of the aforesaid submissions, it is submitted that the instant appeal may be dismissed being devoid of any merits.
ANALYSIS AND FINDINGS
27. Heard the learned counsel for the parties and perused the record.
28. The instant appeal is admitted.
29. It is the case of the appellant that the learned Tribunal has awarded an inadequate compensation under all the sub-heads without contemplating the grievous injuries suffered by the appellant due to the said accident while passing the impugned order. It is further contented that the respondent no.2, who is the registered owner of the offending vehicle, is liable to be held jointly and severally liable along with the respondent no.1/driver.
30. In rival submissions, it is contended by the respondent no.1 that the instant appeal is bereft of any merits and that the appellant herein is not entitled for an enhancement qua the compensation. However, it is the case of the respondent no.1 that he is not financially equipped to pay the compensation awarded by the learned Tribunal. Hence, it is prayed that the instant appeal may be dismissed.
31. Taking into consideration the aforesaid arguments, the following issues arise before this Court for adjudication:
1. Whether the appellant/claimant is entitled for overall enhancement of the compensation granted by the learned Tribunal?
2. Whether Mr. Deepak Ray/respondent no. 2, allegedly being a registered owner of the offending vehicle, be made jointly and severally liable to pay the compensation to the claimant?
32. Before delving into the issues at hand, this Court deems it apposite to peruse the findings and reasons recorded by the learned Tribunal in the impugned order. The relevant portion of the same is reproduced as follows: “Issue no. 1 (Negligence)
20. PW[1] Mohd. Zakir in his affidavit of evidence (Ex.PW1/A) categorically stated that he got injuries due to the rash and negligent driving of respondent no. 1. Nothing came in his cross examination to disbelieve his version. His version is duly corroborated by police investigation. Police during investigation also found respondent no.1 accused of rash and negligent driving, hence chargesheeted him for commission of offence under section 279/338 of Indian Penal Code.
21. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon'ble High Court (MP) in case titled as "Basant Kaur & Ors Vs. Chattar Pal Singh and Ors" [2003 ACJ 369 MP (DB)], wherein it has been held that registration of a criminal case against the driver of the offending vehicle is enough to record the finding that the driver of offending vehicle is responsible for causing the accident. Further it has been held in catena of cases that the proceedings under the Motor Vehicles Act are not akin to the proceedings as in civil suit and hence strict rules of evidence are not required to be followed in this regard. I am also being guided by the judgment of Hon'ble High Court of Delhi in "National Insurance Company Limited V[5]. Pushpa Rana" (2009 ACJ 287), wherein it was held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under Section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo or the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It is also settled law that the term rashness and negligence has to be constructed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
22. In view of the above discussion, petitioner is able to prove that he suffered injuries due to rash and negligent driving of the respondent no. 1. Accordingly the issue no. 1 is decided in favour of the petitioner and against the respondents. Issue no. 2 (Compensation)
23. In injury cases, the claimants are entitled to pecuniary as well as non pecuniary damages. Apex court in Raj Kumar Vs. Ajay Kumar 2011 (1) SCC 343 held that compensation awarded must be "just compensation" means to the extent possible Tribunal fully and adequately restore the claimant to the position which he/she was having prior to the accident. The person is not only to be compensated for physical injury, but also for loss which he /she suffered as a result of such injury. Apex court in R.D.Hatangadi Vs Press Control (India) Pvt Ltd (1995) 1 SCC 551 held that pecuniary and non pecuniary compensation to be assessed separately. Pecuniary damages are those which the victim has actually incurred, which are capable of being calculated in terms of money, whereas non pecuniary damages are those which are not capable of being assessed by arithmetical calculation, however no amount of compensation can restore the physical frame of the victim, therefore object to compensate such injury is "so far as money can compensate", because it is impossible to equate money with the human suffering or personal deprivation. To compute compensation involved some guess work, some hypothetical considerations, some amount of sympathy linked with the nature of disability caused. In Nagppa Vs Gurdayal Singh 2003 (2) SCC 274 apex court observed that while calculating such damages Tribunal required to have some guess work taking into account the inflation factor.
24. In the light of aforesaid guidelines and parameters, this Tribunal has to assess the compensation to-be awarded to the claimant/petitioner.
25. Medical Expenses: PW[1] petitioner in his affidavit of evidence stated that after accident, he was immediately removed to Batra Hospital, New Delhi in an unconscious state where O/E, he was found to be drowsy, restless and incontinent by the M/E as per the detail inscribed on the enclosed Medico Legal Report of dated 01.06.2004 at 10.59am. He further stated that he remained under treatment in Batra hospital from 01.06.2014 to 12.06.2014. He further stated that thereafter, he was admitted in IHBAS from 09.04.2010 to 06.05.2010. Discharge summary of Batra hospital (Mark X) shows that petitioner admitted on 01.06.2004 and discharged on 12.06.2004 and diagnosed to have suffered ''head injury-left temporal contusion''. Medical Board Report of Patient Mohd. Zakir ( Ex. PW2/B) mentioned that "Patient Mohd. Zakir was examined by the Medical Board at IHBAS on 31.03.2010. The board opines that patient needs inpatient evaluation for resolving some clinical issues and for other relevant investigations for final medical board opinion. The patient will be taken up for review Medical Board after 4-6 weeks Another Medical Board Report of Patient Mohd. Zakir says that " patient Mohd. Zakir was examined by the Medical Board at IHBAS on 05.05.2010. The board opined that based on evidence from clinical history and ward behavior observation, neuropsychological assessment and neuro imaging findings the patient is diagnosed as a case of "post traumatic cognitive impairment". Discharge summary of IHBAS shows that petitioner admitted on 09.04.2010 and discharged on 06.05.2010. In the discharge summary mentioned that "patient sustained significant head injury. Remained in coma for 3 weeks and had to be operated. After gaining consciousness, he c/o memory impairment/inability to plan a head/ADL &dys function in work". During proceedings, petitioner was examined for disability. Discharge card of HAH Centernary hospital shows that petitioner admitted on 16.05.2013 and discharged on 22.05.2013 and final diagno.sis is ''Tuberculosis ABD". Disability certificate dated 28.02.2012 issued by the medical board of Pandit Madan Mohan Malviya hospital opined that petitioner suffered 75% permanent disability in relation to his whole body. This condition is non progressive, not likely to improve and reassessment is not recommended. Petitioner for claiming expenses relied upon medical bills (Ex. PW1/C) of Rs. 16,764/-. Nothing material has come in his in cross examination to dispute the veracity of these bills. Hence a sum of Rs. 17,000/- is granted to the petitioner towards medical expenses.
26. Compensation for Pain & Sufferings: Petitioner has suffered 75% permanent disability in relation to his whole body, therefore, keeping in view the nature of injuries, duration of treatment and trauma of accident, a sum of Rs. 5,000/- is granted to the petitioner towards pain and sufferings.
27. Loss of Amenities and enjoyment of Life: Petitioner suffered permanent disability in relation to his whole body, this injury will definitely hamper his daily activities and enjoyment in every walk of life. Hence, a sum of Rs. 10,000/is granted towards loss of amenities and enjoyment of life.
28. Loss of income/leaves during treatment:- Petitioner in his affidavit of evidence stated that at the time of accident, he had been engaged /occupied in the trade of selling meat by running a shop in Subhash Camp, Dakshinpuri, New Delhi-62 and earning about one lac a year with the cooperation and active assistance of his wife prior to his involvement in RTA but since the date of accident, he is totally unemployed and his family is being fed by his father, four brothers and his in laws. In his cross examination, he stated that he was having his own meat shop. He has not filed any document regarding his ownership on the said shop. He further stated that it is correct that there is no document filed on record regarding his meat business. He further stated that it is also correct that there is no document filed on record regarding his monthly income. He did not file any documentary evidence regarding his salary. In these circumstances, income of the petitioner is to be assessed under minimum wages act applicable for unskilled on the date of accident i.e 01.06.2004 is Rs. 2862.90/—(round figure as Rs. 2863/-). Keeping in view the nature of injuries and duration of treatment a lump sum amount of Rs 2863X[6] =Rs. 17,178/- is granted to the petitioner towards loss of income during treatment.
29. Loss of future income: In the claim petitioner, age of injured and disability certificate is mentioned as 30 years. In the ration card, age of injured is mentioned as 45 years. In the election I card, age of injured is mentioned as 25 years as on 01.01.1994, therefore, he is around 39 years at the time of accident i.e. 01.06.2004. The age of injured is taken as 39 years on the basis of election I card. Due to the present injuries his entire carrier is ruined. It is natural that with this disability and injuries the petitioner entire future career/earning capacity has been destroyed. However, present injury will somehow diminish his earning capacity. As per disability certificate, petitioner suffered 75% permanent disability in relation to his whole body, in view of the judgment of Delhi High Court titled as "Laxmi Narain Vs. Trilochan Singh & Ors., FAO No. 289/99, dated 04.05.2009, Delhi", the total functional disability towards whole body is assessed around 38%.
30. Petitioner's income is assessed at the rate of Rs. 2863/per month. Petitioner being aged around 39 years, also entitled for 50% increase in income towards future prospect [relied upon Sanjay verma Vs Haryana Roadways 2014 ACJ 692 (SC), Mirajuddin Vs Shonki Ram & Ors MAC App 604/2011 dated 03.12.2013 (Delhi), Reliance General Insurance Company Litimed Vs Haresh Kumar @ Harish Kumar MAC App no. 399/12 dated 27.05.2014 (Delhi), Uttranchal Transport Corporation Vs. Navneet Jerath 2013 ACJ 1966 (Delhi), Neerupam Mohan Mathur Vs New India Assurance Company 2013 (14) SCC 15J. Therefore, his monthly income is assessed around (Rs. 2863/-+ Rs.50% of Rs.2863/-= Rs.4294.5/-). Apex court in Raj Kumar Vs. Ajay Kumar 2011(1) SCC 343, mandated multiplier method for calculation of compensation for future loss of earning capacity which is as follows: (a) Annual income= Rs.4294.5/-X12=Rs. 51,534/- (b) loss of future earning per annum (38% of the prior annual income) =Rs. Rs. 51,534/-X 38% =Rs 19,582.92/-
(c) Petitioner is found to be around 39 years of age at the time of accident, Therefore, applicable multiplier as per Sarla Verma Case is 15.
(d) Loss of future earnings= Rs 19,582.92/- X 15= Rs.
31. Attendant Charges: Petitioner suffered disability injuries and will require attendant for most number of occasions throughout entire life. Hence a lump sum amount of Rs.10,000/- is granted towards attendants charges.
32. Special Diet and Conveyance Charges:- Keeping in view the nature of injuries and duration of treatment, a sum of Rs. 5,000/- each is granted towards special diet and conveyance charges. Total sum of Rs. 10,000/- is granted under this head.
33. Disfigurement: Petitioner suffered permanent disability in relation to his whole body which causes disfigurement of the body, therefore a sum of Rs.10,000/- granted to him towards disfigurement.
34. The total compensation is assessed for injured as under:-
7 Compensation for disfigurement 8 Loss of income during treatment Rs. 17,178/- Total Rs.3,72,922/- Interim Award Rs. 25,000/- Net Total Rs. 3,47,922/-
35. The petitioner is hereby awarded a sum of Rs. 3,47,922/- (Rupees Three lacs forty seven thousand nine hundred twenty two only) with interest @ 9% per annum from the date of filing of the present petition, till the date of realization of the amount in favour of petitioner and against the respondent no. 1 Mohd. Sabuddin on account of their liability being joint and several.
36. The driver R-1 Mohd. Sabuddin is the principal tort feasor as well as fully liable for his act as he is the owner of the vehicle also and the offending vehicle is not insured also.
37. In view of the above discussion, the respondent Mohd. Sabuddin is directed to discharge the liability of the award amount within a period of 30 days from today along with the interest @9% per annum, failing which interest @12% per annum shall be charged for the period of delay.”
33. At the outset, the learned Tribunal categorically dealt with the issue of negligence as well as the compensation to be awarded to the claimant. While determining the issue of negligence, the learned Tribunal has placed reliance on the testimonies of the witnesses as well as the material on record and concluded its findings based on the principle of preponderance of probabilities that the respondent no.1/driver was driving the offending vehicle in a rash and negligent manner, which caused grievous injuries to the claimant/appellant herein.
34. In order to determine the compensation for the injuries sustained by the claimant/appellant, the learned Tribunal assessed various documents placed on record such as the medico-legal report, discharge summaries, medical board report, election identity card, disability certificate etc. Upon consideration of the aforesaid documents and situational difficulties surrounding the claimant/appellant, the learned Tribunal awarded a sum of Rs.2,72,922/- as compensation to the claimant, which is to be payable by the driver/respondent no.1. However, out of the said total compensation, the respondent no. 2/Mr. Deepak Ray paid Rs. 25,000/- as interim relief.
ISSUE – 1: Whether the appellant/claimant is entitled for overall enhancement of the compensation granted by the learned Tribunal?
35. It is the case of the appellant that the compensation amount ought to be enhanced overall under all the heads as the learned Tribunal erred in not granting „just‟ and „reasonable‟ compensation thereto.
36. Therefore, for the purpose of convenience, this Court shall firstly deal with the pecuniary expenses and later, non-pecuniary expenses as awarded by the learned Tribunal.
37. However, while awarding compensation under these expenses, multiple factors need to be taken into consideration as the primary aim is to provide for just and reasonable compensation to the victim of motorvehicle accidents and ensure that the factors affecting the needs of the claimant are taken into account. In the case of Raj Kumar vs. Ajay Kumar[1], the Hon‟ble Supreme Court laid out different factors to be considered under the pecuniary and non-pecuniary heads while determining the compensation. In the said case, it was observed by the Hon‟ble Supreme Court that the assessment of pecuniary damages is usually based on the evidence placed on record as it includes reimbursement of the amount spent and medical records of the treatment, whereas the assessment of non-pecuniary damages is subjective and depends on the nature of injuries and surrounding circumstances of the victim.
38. While granting compensation for medical expenses, only those documents which pertain to the injuries sustained by the appellant in the instant case shall be taken into consideration and the injuries arising out of the said documents have to be in relation to the concerned accident.
39. As per the material available on record, it is revealed that the appellant met with an accident and was immediately rushed to the Batra Hospital, Delhi for medical treatment, wherein he was hospitalised from 1st June, 2004 to 12th June, 2004. As per the medico-legal report, the appellant incurred grievous injuries, wherein it was stated that his left ear was bleeding and affected his level of consciousness. It is further revealed that the appellant also consulted the NCCT of Brain on 22nd March, 2005 and was later admitted to Institute of Human Behaviour and Allied Sciences (hereinafter as the “IHBAS”) from 5th April, 2010 to 6th May, 2010, wherein he was examined by the medical board at IHBAS for disability report on 5th May, 2010. Moreover, the appellant was also hospitalised in HAH Centenary Hospital from 16th May, 2013 to 22nd May, 2013 for abdominal tuberculosis.
40. This Court has also perused evidence and examination of witnesses before the learned Tribunal. PW – 5, Dr. Pradeep Gupta, Senior Resident at HAH Centenary Hospital, Hamdard Nagar, New Delhi testified before the learned Tribunal that the appellant was admitted in their hospital from 16th May, 2013 to 22nd May, 2013 and was diagnosed for abdominal tuberculosis. He further stated that the said diagnosis has no relation with the physical disability or accidental injuries caused due to the motor vehicle accident.
41. However, the medical bills pertaining to the appellant‟s treatment of abdominal tuberculosis is also placed on record and the same has been considered by the learned Tribunal while granting compensation under this head. In light of PW-5‟s testimony, the bills arising from 16th May, 2013 to 22nd May, 2013 cannot be considered while determining the medical expenses as the same is with respect to the abdominal tuberculosis, which is not relevant to the injuries sustained in the accident in question.
42. Even so, the appellant has placed additional evidence on record with respect to the medical treatment of grievous injuries sustained, which is inclusive of medical bills from Batra Hospital as well as other miscellaneous receipts.
43. The learned Tribunal relied upon the testimony of PW-1, and medical bills and documents on record such as the medico-legal report, discharge summaries of IHBAS and HAH, while granting a sum of Rs. 17,000/- for medical expenses. However, while granting the same, the learned Tribunal has failed to take into account the medical bills of Batra Hospital, which are placed on record, and erroneously considered the medical bills of HAH, wherein the appellant underwent medical treatment for abdominal tuberculosis, which is not related to the injuries incurred in the accident.
44. It is observed herein that the learned Tribunal erred in law by wrongly taking the medical bills for the „treatment of abdominal tuberculosis‟ into consideration while awarding the compensation under the head of „medical expenses‟ as the same is not relevant to the injuries sustained by the appellant in the accident, as testified by PW-5. Moreover, it failed to take into account the medical bills from Batra Hospital, where the appellant was initially admitted for treatment of accidental injuries.
45. Therefore, for computing the medical expense, this Court has relied upon the testimony of PW-5 as well as the additional medical bills on record, and the same stands modified from Rs.17,000/- to Rs. 59,000/. The compensation of the same is given as under – DETAILS AMOUNT Bill no. 104169 dated 12th June, 2004 [from 1st June, 2004] Rs. 54,052/- Miscellaneous Bills – which are considered by the learned Tribunal, but exclusive of HAH bills Rs. 1000/- Additional miscellaneous bills – which are not considered by the learned Tribunal Rs. 3853.50/- TOTAL Rs. 58,905.50/-, rounded off to Rs. 59,000/- Loss of income during the treatment:
46. In order to assess the loss of income during the treatment, it is pertinent for this Court to determine the income of the appellant and the duration of his medical treatment.
47. It has been testified by PW-1/appellant in his cross examination that at the time of the accident, he was the owner of a meat shop which is within his residential premises. However, it was admitted that he did not place any document on record pertaining to his ownership over the meat shop as well as the income generation thereof. Moreover, it was deposed that the appellant studied only upto 5th standard and barely knows how to read and write.
48. Therefore, in absence of any documents proving the income and profession of the appellant, the learned Tribunal has rightly taken the minimum wages of an unskilled worker, which is Rs. 2,863/- per month, prevailing at the time of the accident, for the calculation of loss of income during the treatment as well as future income.
49. For determining the duration of medical treatment, this Court further perused the medical documents such as discharge summaries, medical board reports, medical bills etc. The aforesaid documents reflect that the appellant was hospitalised from 1st June, 2004 in Batra Hospital and was further admitted in IHBAS from 5th April, 2010 to 6th May, 2010. It is observed that the aforesaid documents reflect that the appellant has procured medical assistance at different points of time and the same is not consistent.
50. However, upon bare perusal of the aforementioned documents, it can be estimated that the appellant must have been in medical surveillance at least for 12 months, given that his bills and discharge summaries indicating that the appellant procured medical examination from various hospitals over a period of time.
51. In absence of any substantial proof to determine the duration of treatment, and in the interest of justice, this Court, considering the gravity of the injuries incurred by the appellant and the treatment that is required for the same, is inclined to consider 12 months as the duration of treatment.
52. Therefore, in view of the above, this Court finds that the learned Tribunal erred in taking the period of treatment for assessing loss of income as merely 6 months, which indicates the learned Tribunal failed to acknowledge the severity of injuries sustained by the appellant and the treatment required for the same. Accordingly, this Court is of the view that the compensation for the loss of income during treatment stands modified from Rs. 17,178/- to a sum of Rs. 34,356 /- [=Rs. 2,863/- (monthly income) x 12 (months)]. Loss of future income:
53. For computation of compensation for loss of future income, factors such as income, age and functional disability of the appellant are taken into consideration. However, it is imperative for this Court to firstly determine the functional disability sustained by the appellant due to the accident caused.
54. In Raj Kumar vs. Ajay Kumar (Supra), the Hon‟ble Supreme Court laid emphasis on the adverse impact of permanent disability on the claimant‟s earning capacity for computing the compensation for loss of future income. The aforesaid observation has been further reiterated by the Hon‟ble Supreme Court in Sandeep Khanuja v. Atul Dande and Anr.2, wherein it was observed as under –
to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the Appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier.”
55. In the instant case, Dr. Rajesh Kumar, Assistant Professor, Department of Psychiatry, IHBAS/PW-2 has testified that the appellant has been receiving treatment at their institute from 27th January, 2010 onwards and remained admitted from 9th April, 2010 to 6th May, 2010. He stated that the appellant was examined by the Medical Board of IHBAS on 5th May, 2010 and was awarded a certificate regarding his condition. He further stated that the appellant was diagnosed with “post traumatic cognitive impairment”, wherein the patient faces difficulty in performing daily activities due to the impairment in cognitive faculties. It was also testified that the appellant shows a lot of fluctuations in behaviour and orientation, thereby being dis-orientated and having the tendency to stay aloof. It was further stated that the appellant needs to be coaxed even for his basic activities in daily living.
56. This Court has perused the disability certificate, medical board report as well as other reports on record, which describe the physiological and behavioural tendencies of the appellant in detail. The disability certificate states that the appellant has incurred 75% permanent disability with respect to the whole body, which is non-progressive and the condition is not likely to change.
57. Further, the psychiatric diagnosis has also been placed on record, wherein his behavioural tendencies such as numbness, aggressiveness, forgetfulness etc. at different situations have been thoroughly assessed. Moreover, this Court has also perused the final report of the IHBAS vide letter No. F.19(3)/Recep/IHBAS/2010/84/51821 dated 13th May, 2010, wherein the board opined that the appellant is diagnosed with “post traumatic cognitive impairment” based on the clinical history, behavioural observation, neuropsychological assessment and neuroimaging findings.
58. The Hon‟ble Supreme Court in the case of Jithendran v. New India Assurance Co, Ltd.[3] observed that 100% functional disability is to be taken in cases of cognitive impairment after assessing its impact on the earning capacity. The relevant portion is reproduced hereinunder –
functional disability is 100% insofar as the claimant's loss of earning capacity is concerned.
18. As noted earlier, the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home. In such circumstances, his loss of earning capacity must be fixed at 100%. As his monthly income was Rs 4500, adding 40% future prospect thereto, the monthly loss of earning is quantified as Rs 6300. We therefore deem it appropriate to quantify Rs 13,60,800 (Rs 6300 × 12 × 18) as compensation for 100% loss of earning for the claimant. Accordingly, under this head, the amount awarded by the High Court is enhanced proportionately.”
59. However, in the instant case, although the appellant has suffered severe injuries to the head and has been diagnosed with “post traumatic cognitive impairment”, it is observed that the Department of Imaging of Batra Hospital examined the appellant wherein it stated that the joints and bones appear to be normal vide document dated 16th July, 2005. It is also to be borne in mind that the appellant is an unskilled worker and therefore, the severity of the cognitive impairment is relatively less on the appellant as compared to a skilled worker, thereby not having an absolute impact on the future earning capacity.
60. In the case of Jithendran v. New India Assurance Co. Ltd. (supra), the Hon‟ble Court emphasised on the impact of cognitive impairment on the future income of the claimant, however, the same is slightly different to the appellant‟s case herein, who is an unskilled worker with a better physical condition, which sheds light on the slim but definite chances of earning an income in his future.
61. Therefore, relying on Raj Kumar (supra) and upon perusal of the aforementioned documents on record and the testimony of PW-2, this Court is of the view that the functional disability for calculating the loss of future income is to be taken as 75% instead of 38% as erroneously taken by the learned Tribunal.
62. The learned Tribunal has held in the impugned order that different date of births are detected in the disability certificate, ration card and election identity card, however, has taken the date of birth mentioned in the election identity card, thereby observing that the appellant must have been 39 years of age at the time of accident.
63. However, the election identity card and ration card on which the learned Tribunal has relied upon are not part of the Lower Court Record. The disability certificate, which is placed on record, displays that the appellant was 30 years of age at the time of the accident. It is pertinent to understand that the disability certificate is not a conclusive document for the identification of the person‟s age and therefore, for the purpose of convenience, this Court takes the findings of learned Tribunal as conclusive with respect to the age of the appellant, which is determined as 39 years of age, for further calculation of the compensation.
64. Accordingly, in view of the findings stipulated in Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr.4, the learned Tribunal has rightly taken the multiplier as 15 as the age of the appellant i.e., 39 years, falls within the said category of multiplier. AIR 2009 SC 3104.
65. It is observed by the Hon‟ble Supreme Court in Sidram vs. The Divisional Manager, United India Insurance Co. Ltd. and Ors.[5] that awarding loss of future income as well as future prospects are imperative in the cases of permanent disability. The relevant portion of the same is as follows –
2022 INSC 1204.
66. In light of the aforesaid observations, it is just and reasonable to award future prospects to the appellant as the instant case is that of permanent disability. Therefore, the factors to be considered while calculating future prospects has been observed in National Insurance Co. Ltd vs Pranay Sethi[6], wherein it was held as follows:
67. In light of the above extract, this Court finds that the appellant was 39 years of age at the time of the accident and was an unskilled labour, and therefore, an addition of 40% of the established income is liable to be made towards future prospects.
68. Therefore, this Court is of the view that the learned Tribunal erred in taking 38% functional disability instead of 75%, thereby wrongly determining the compensation under loss of future income head. Thus, the compensation granted for the loss of future income, which is inclusive of future prospects, stands modified from Rs. 2,93,744/- to Rs.5,41,110/-. The aforementioned reasonings and calculation of the same have been encapsulated in the following table – Income earned per annum Rs. 2,863/- (monthly income) x 12 months = Rs. 34,356/- AIR 2017 SC 5157. Additional 40% of the established income for future prospects Rs. 34,356 + 13,742.40 (40% of the established income) = Rs. 48,098/- Multiplier (age of 39 at the time of accident) Functional disability incurred 75% = Rs. 48,098 x 15 x 75% =Rs. 5,41,102.50/- Total loss of future income Rs. 5,41,110- (rounded off)
NON-PECUNIARY EXPENSES
69. Adverting to the non-pecuniary expenses, this Court finds it pertinent to mention the case of K. Suresh vs. New India Assurance Co. Ltd. & Anr.7, wherein it was observed by the Hon‟ble Supreme Court that while granting compensation under non-pecuniary heads, the Courts may not be able to ascertain correct value of compensation given that numerous factors affect the daily life of the victim of the motor-vehicle accident. It additionally emphasises on granting just and reasonable compensation by encompassing all the facts and circumstances subjected to the victims. The relevant portion of the said judgment is reproduced hereunder:
earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of “just compensation” should be inhered.” Attendant charges:
70. In the instant case, while granting compensation for attendant charges, the learned Tribunal considered the veracity and severity of the appellant‟s injuries and its impact on the future. Although the testimonies of the witnesses pertaining to the said head were mentioned in the impugned order, the same was not discussed by the learned Tribunal while granting the same. Therefore, this Court finds that the same warrants discussion before proceeding further.
71. As per the material on record, PW-3/Ms. Ramratti testified to the effect that she was a domestic assistant in the petitioner‟s house from June, 2004 to July, 2011. It has been stated that her primary duty was to do domestic chores such as cleaning utensils, washing clothes, preparing food etc, however, she further stated that she looks after the wife of the petitioner as well. Regarding her work as a domestic attendant, she testified that she was being paid Rs. 4,000/- per month, however, she later stated that she started with a monthly salary of Rs. 2,500/-, increased to Rs. 3,000/- and further to Rs. 3,500/-. It was testified that she used to work from 9:00 AM to 8:00 PM and that she worked there for five to six years. However, she deposed that she does not remember the name of the other person who attends the appellant and that she did not know the appellant prior to the accident.
72. Mr. Raj Kumar/PW-4 has deposed in his affidavit that he was working as an attendant at the appellant‟s house from 12th June, 2004 to 31st December, 2011 and that his main job was to take the petitioner in and out of the toilet, arrange his bath, change his clothes and ensure his medicines are being administered properly. Regarding his salary, he testified that he was receiving Rs.3,500/- per month for the initial two years and was later increased to Rs.4,000/- per month over the last five years. However, in his cross examination, he deposed that he was paid Rs. 3,500/- per month. It was also stated that PW-4 used to work from 8:00 PM to 8:00 AM. Contradicting to the aforementioned testimony of PW-3, it was testified that PW-3 is the wife of PW-4 and that PW-4 has known the appellants for nearly two decades and has shared a friendly relationship.
73. Upon perusal of the aforementioned depositions of PW-3 and PW- 4, it is made out that the testimonies therein are contradictory in nature. It was mentioned by PW-3 in her testimony that she does not know the identity of the other person who attends the appellant whereas it was testified by PW-4 that PW-3 is his wife. Moreover, in her testimony, PW- 3 stated that she has never known the appellant until the accident, however, PW-4‟s testimony suggest otherwise wherein he knows the appellant from the last two decades.
74. Therefore, this Court cannot take the testimonies of PW-3 and PW- 4 into consideration while determining the compensation under the head of attendant charges as the said testimonies appear to be contradictory.
75. However, considering the gravity of injuries sustained by the appellant, this Court is of the view that the appellant must have required assistance of either an attendant or family members, during his treatment and the same is required in the future as well.
76. In Jithendran v. New India Assurance Co. Ltd., (Supra), it was observed by the Hon‟ble Supreme Court that in absence of any material pertaining to the attendant charges, a conservative estimate of Rs. 5,000/per month appears to be the bare minimum. However, in the aforesaid case as well as in the case of Kajal v. Jagdish Chand[8], the Hon‟ble Supreme Court observed that the multiplier system is not only essential to be considered while determining the loss of future income but also attendant charges. In light of the same, taking the multiplier as 15 (since the appellant was 39 years of age at the time of the accident) and an annual income of Rs. 60,000/-, this Court grants an amount of Rs. 9,00,000/- (Rs. 60,000/- (annual income) x 15(multiplier)) for attendant charges.
77. Upon perusal of the compensation awarded by the learned Tribunal under the remaining non-pecuniary expenses, that is, pain and suffering; special diet and conveyance; loss of amenities and enjoyment of life; disfigurement, this Court is of the opinion that the learned Tribunal erred in granting meagre amount of compensation for the aforesaid heads.
78. Since this is a case of cognitive impairment, it is important to mention the case of Kajal v. Jagdish Chand (Supra), wherein the Hon‟ble Supreme Court observed that especially in cases of mental disability, liberal view must be adopted while granting compensation and the relevant paragraph of the same is as follows:
79. Therefore, giving utmost consideration to the fact that the appellant herein has sustained cognitive impairment due to the accident in question, as well as the fact that the appellant must have faced situational difficulties in enjoying the fruits of his life, this Court is of the view that the compensation under the aforesaid heads ought to be enhanced. Moreover, this Court has also taken into account the medico-legal report as well as other medical documents on record, which suggest that the appellant sustained grievous head injuries, thereby making the appellant entitled for compensation for disfigurement as well.
80. The enhanced compensation under the aforesaid heads shall now be read as under – Heads Compensation granted by the learned Tribunal Enhanced compensation granted by this Pain and suffering Rs. 5,000/- Rs. 1,00,000/- Special diet and conveyance Rs. 10,000/- Rs. 75,000/- Loss of amenities and enjoyment of life Rs. 10,000/- Rs. 1,00,000/- Disfigurement Rs. 10,000/- Rs. 50,000/-
81. It is also pertinent to note that the appellant has additionally sought for compensation under „loss of care and guidance for minor children‟ and „loss of consortium‟. However, it is also important to note that the instant case is that of permanent disability and not that of death and hence, considering that the compensation is granted under all adequate heads herein, this Court is inclined to refrain from awarding additional compensation under the „loss of care and guidance for minor children‟ and „loss of consortium‟.
82. Therefore, in view of the foregoing findings, the overall compensation is enhanced as under: S.No Heads of Compensation Amount PECUNIARY EXPENSES
1. Medical expenses Rs. 59,000/-
2. Loss of income during the treatment Rs. 34,356/-
3. Loss of future income Rs. 5,41,110/- NON-PECUNIARY EXPENSES
4. Pain and suffering Rs. 1,00,000/-
5. Loss of special diet and conveyance Rs. 75,000/-
6. Nursing/ Attendant charges Rs. 9,00,000/-
7. Loss of amenities and enjoyment of life Rs. 1,00,000/-
8. Disfiguration Rs. 50,000/- TOTAL Rs. 18,59,466/-
83. Considering the findings made hereinabove, the total compensation awarded to the appellant by the learned Tribunal stands enhanced from Rs. 2,72,922/- to Rs. 18,59,466/- along with interest @ 9% per annum within the period of four (4) weeks from the date of receipt of this order, after deducting/adjusting the amount already paid/deposited.
84. Accordingly, the issue no. 1 stands decided in favour of the appellant.
ISSUE – 2: Whether Mr. Deepak Ray/respondent no. 2, allegedly being a registered owner of the offending vehicle, be made jointly and severally liable to pay the compensation to the claimant?
85. Now adverting to the second issue at hand, it is imperative to reiterate that after addressing the issues on negligence and compensation award, the learned Tribunal directed the driver/respondent no.1 to pay the compensation amount to the claimant.
86. However, a contention has been raised before this Court by the appellant/claimant that the registered owner of the offending vehicle, the respondent no. 2 herein, must be held jointly and severally liable to pay the compensation amount.
87. Before delving into the issue of ascertaining the liability of respondent no.2, it is appropriate to firstly determine whether the respondent no. 2 is the rightful owner of the offending vehicle. In light of the same, it is apposite to delve into the statutory provisions pertaining to „ownership‟.
88. As per the Motor Vehicles Act, 1988, the definition of the term “owner” is enumerated in Section 2(30), which is as follows: “2. Definitions xxxxx (30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement”
89. The bare perusal of the provision indicates that the term “owner” refers to the person in whose name the motor vehicle is registered. It can be observed that the legislature intended that the registered owner as reflected in the records of the Registering Authority will primarily be considered as the “owner” for the purposes of this Act, except in cases of minor or an agreement of hire-purchase, lease, or hypothecation, as explicitly stated in the latter part of the Section 2(30) of the Act, wherein mere possession of the vehicle is sufficient to fall within the ambit of the provision.
90. The distinction between the definition of the “owner” of the erstwhile Act of 1939 and that of the new Act of 1988 was discussed by the Hon‟ble Supreme Court in the case of Naveen Kumar v. Vijay Kumar[9], wherein the former did not include the registration of the owner, which came into existence only with the enactment of the Act of 1988. This distinction clearly sheds light on the legislative intent behind the specific change brought forth by the new Act of 1988, which gives primacy to the registered owner rather than the possessory owner.
91. The said legislative intent has also been discussed in the case of Surendra Kumar Bhilawe vs. The New India Assurance Company Limited10, where the Hon‟ble Supreme Court observed as follows:
2020 INSC 434. The definition has undergone a change. Legislature has consciously changed the definition of 'owner' to mean the person in whose name the motor vehicle stands.”
92. The introduction of „registered owner‟ within the ambit of Section 2(30) of the Act establishes that it is presumed that the person whose name is reflected in the records of the Registering Authority is to be regarded as the owner of the vehicle. The position of law has been further discussed by the Hon‟ble Supreme Court in the case of Pushpa alias Leela and Ors. v. Shakuntala and Ors11, wherein for the purposes of liability, the Hon‟ble Court addressed the question of who shall be considered as the owner of the offending vehicle. The relevant paragraphs of the same are as follows: “9. The question of the liability of the recorded owner of the vehicle has to be examined under different provisions of the Act. Section 2(30) of the Act defines "owner" in the following terms: 2(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement; (Emphasis added)
10. Then, Section 50 of the Act lays down the procedure for transfer of ownership. It is a long section and insofar as relevant it is reproduced below:
50. Transfer of ownership.
(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,- (a) the transferor shall,-
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and
(ii) xxxx
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration. (2) xxxx (3) xxxx (4) xxxx (5) xxxx (6) On receipt of a report under Sub-section (1), or an application under Sub-section (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration. (7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority.
11. It is undeniable that notwithstanding the sale of the vehicle neither the transferor Jitender Gupta nor the transferee Salig Ram took any step for the change of the name of the owner in the certificate of registration of the vehicle. In view of this omission Jitender Gupta must be deemed to continue as the owner of the vehicle for the purposes of the Act, even though under the civil law he ceased to be its owner after its sale on February 2, 1993.
12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose v. Chacko P.M. MANU/SC/1691/2001: (2001) 8 SCC 748. In paragraphs 9 and 10 of the decision, the Court observed and held as follows:
9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.
10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so.
13. Again, in P.P. Mohammed v. K. Rajappan and Ors. (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows:
4. These appeals are filed by the Appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the Appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the Appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person.
14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.”
93. The aforementioned judgment has clearly distinguished the position of law under the Motor Vehicles Act, 1988 and the Transfer of Property Act, 1882, wherein the latter Act requires the existence of the transfer, however, mere existence of transfer does not absolve the liability of the registered owner as required by the former Act. The said distinguishing requirement has been further dealt in the case of Naveen Kumar v. Vijay Kumar (Supra) by the Hon‟ble Supreme Court, interpreting the mandate of Section 2(30) of the Act, which stipulates that the registered owner is liable to compensate the victim of motor vehicle accident. The relevant portion is reproduced hereinunder: “12. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First Respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma and Purnya Kala Devi.
13. The submission of the Petitioner is that a failure to intimate the transfer will only result in a fine Under Section 50(3) but will not invalidate the transfer of the vehicle. In Dr. T.V. Jose, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled.”
94. In light of the above discussions, it is pertinent to examine the testimony of the witnesses relevant to the said issue. As per the record, R2W2/respondent no. 2 stated in his examination that he had purchased the offending vehicle i.e., two-wheeler scooter bearing registration number DNF-7071, to which he was the owner, up until the year 1998, and the same was sold to the respondent no.1/ driver in the very same year. He further testified that all the necessary documents pertaining to the vehicle were handed over to the respondent no.1 /driver after getting his signature on one delivery receipt. In his cross-examination, R2W[2] also deposed that he sold the vehicle to the driver/respondent no.1 at a sale consideration of Rs. 10,000/-, however, stated that the receipt of the same has not been acquired, hence, not placed on record. Further, he deposed that all the requisite documents have been handed over to the driver, including the insurance as well as Form nos. 29 and 30. However, he admitted that he neither went to the Registering Authority nor did he attempted to formally transfer the vehicle in the name of the transferee i.e., driver.
95. The aforementioned transaction of sale has been starkly rejected by RW1/ respondent no. 1 herein in his deposition stating that the respondent no. 2 did not sell the vehicle to him and no Form Nos. 29 and 30 were handed over to him regarding the said sale.
96. In view of the foregoing deposition, this Court has further, perused the relevant documents on record, i.e., the delivery receipt and Certificate of Registration (Form-G). The contents of the former document reveals that the offending vehicle bearing number DNF-7071 of 1989 model along with the registration documents have been delivered to Mr. Mohd. Sabuddin/ respondent no.1 by Mr. Deepak Rai/ respondent no. 2. The said receipt bears the signature of respondent no. 1 and is dated 19th December, 1998. However, the document in question seems vague as it holds no authenticity of the contents mentioned therein as there is no other document on record pertaining to the alleged sale transaction between the respondent no. 1 and respondent no. 2. Therefore, in view of the same, the delivery receipt cannot be taken into consideration for proving the ownership of the offending vehicle.
97. On the other hand, the latter document i.e., the Certificate of Registration reveals that the registration of vehicle bearing no. DNF-7071 was transferred from one Mr. Balbir Singh to Mr. Deepak Rai/ respondent no. 2, thereby officiating the respondent no. 2 as the registered owner as per the records.
98. Since there is no other document on record contradicting the aforesaid contents of the documents, and placing reliance on the judgments cited herein, it is evident that respondent no. 2 remains the registered owner of the offending vehicle as he falls within the definition of “owner” as per Section 2(30) of the Act.
99. Now adverting to the issue of liability.
100. It has already been discussed in the aforementioned judgments that the liability to pay the compensation is fastened upon the registered owner of the offending vehicle. However, a question arises as to the extent of liability of the registered owner.
101. Therefore, what needs to be addressed at this stage is whether the registered owner of the offending vehicle i.e., respondent no. 2 shall be solely liable or jointly and severally liable along with the driver of the offending vehicle i.e., respondent no. 1.
102. To determine the aforesaid question of liability, it is imperative to look into the findings of the Hon‟ble Supreme Court in the case of Godavari Finance Company vs. Degala Satyanarayanamma & Ors.12, wherein it was categorically stated that the person who is in possession and control over the offending vehicle will be held liable for the payment of the compensation amount. However, the test mentioned in the said case law must be construed subject to the factual scenario of each case. For the purpose of convenience, the relevant paragraph of the judgment is reproduced as under:
to be liable, it would have to reimburse the owner inasmuch as a vehicle is compulsorably insurable so far as a third party is concerned, as contemplated under Section 147 thereof. Therefore, there cannot be any doubt whatsoever that the possession or control of a vehicle plays a vital role.”
103. Similarly, in the recent judgment of the Hon‟ble Supreme Court in the case of Vaibhav Jain vs. Hindustan Motors Pvt. Ltd13, it was discussed in length that at the time of the accident, if the person who has the actual possession and control of the vehicle and under whose direction and command the driver is obliged to operate the same, shall be subjected to the liability of pay the compensation.
104. Keeping in view of the aforementioned principles, this Court has perused the testimonies of the witnesses, wherein, it was testified by RW[1] that he was working as an employee of respondent no. 2‟s proprietary firm i.e., M/s Deepak Engineering Works from the January, 2004 to October, 2006, drawing a salary of Rs. 2,500- 3,000/- per month. He further testified that he used to work from 10 AM to 5 PM as a plumber and that the respondent no. 2 would lend his scooter bearing number DNF-7071 for attending complaints.
105. The said deposition of RW[1] has been patently refuted by R2W2/ respondent no. 2 in his testimony. It was stated that the respondent no. 1 was working as an employee of respondent no. 2 till the year 1998 and that the respondent no. 2 was not working for him in the year 2004. He further stated that he maintained all the records pertaining to the employment of the workers, however, later admitted that he is not in 2024 INSC 652. possession of documents such as attendance register, salary slips etc. upto the year 2004. He further denied that the scooter bearing no. DNF-7071 was not given to the workers for attending the complaints.
106. Upon perusal of the aforesaid testimonies, it is observed that the employer-employee relationship between respondent no. 1 and 2 cannot be proved as the same has been utterly contradicted by the parties in its testimonies. Moreover, no such document was placed on record showing that on the day of the accident, the respondent no. 1 was driving in the course of employment or under the direction of the respondent no. 2.
107. Therefore, applying the principles enunciated in the cases of Godavari Finance Company vs. Degala Satyanarayanamma & Ors. (Supra) and Vaibhav Jain vs. Hindustan Motors Pvt. Ltd. (Supra) to the facts of the instant case, it is observed that the since the driver/ respondent no. 1 was held liable for the rash and negligent driving of the offending vehicle, and in absence of any evidence pertaining to the control of respondent no. 2 on the driver, this Court is of the view that the driver herein is also liable to pay the compensation amount to the claimant.
108. Although the possession and control of the offending vehicle is with the driver/ respondent no. 1, it does not mean that the registered owner is not liable for the same just on the pretext of non-possession and non-control, thereby making both the driver as well as the registered owner jointly and severally liable. The said stance has been taken by the co-ordinate bench of this Court in the case of Om Prakash Jaiswal and Ors. vs. Manish Kumar and Ors.14, where the Court observed that the registered owner shall continue to remain liable to pay the compensation to the victim of motor accident and the mere possession and control of the vehicle shall not absolve the person from paying the said compensation to the victim. It further stated that the liability would remain joint and several in such cases between the registered owner and the person who was in actual possession of the vehicle at the time of the accident.
109. Keeping in view the foregoing reasoning and findings, this Court is of the view that both the driver/respondent no. 1 as well as the registered owner/respondent no. 2 are jointly and severally liable to pay the compensation amount to the claimant/appellant herein.
110. Accordingly, issue no. 2 stands decided in aforesaid terms.
CONCLUSION
111. As discussed in the preceding paragraphs, the Motor Vehicles Act, 1988 is a beneficial legislation which was brought in force with an intent to provide relief to the victims or their families, who were subjected to motor vehicle accidents. Therefore, while granting compensation to the victims of motor-vehicle accidents or their families, the Courts need to consider the objective and intent behind the promulgation of the Act. However, the said compensation cannot be awarded exorbitantly, rather, in a just and reasonable manner.
112. Moreover, as per the settled principles of law, the person whose name reflects in the records of the Registering Authority will be considered as the registered owner of the vehicle. However, the extent of liability is determined based on the possession and control over the offending vehicle and also differs with the involvement of parties in the accident.
113. Therefore, by way of filing the instant appeal, the appellant has sought for enhancement of the compensation amount granted by the learned Tribunal as the same is not adequate to the injuries sustained by the appellant. Additionally, it also sought for making respondent no. 2 jointly and severally liable to pay the said compensation as the respondent no. 2 is the registered owner as per the records of the Registering Authority.
114. After due consideration and discussion, this Court is of the view that the learned Tribunal erred in granting inadequate compensation to the claimant under all the sub-heads, without taking into consideration the gravity of injuries sustained by the claimant in the accident.
115. It is further held that the respondent no. 2 is a registered owner of the offending vehicle as per Section 2(30) of the Act and as per the settled position of law, the respondent no. 2 is liable to pay the compensation to the claimant. With respect to the extent of liability, this Court has observed that the possession and control of the offending vehicle, at the time of the accident, is with the respondent no. 1, and therefore, both respondent no. 1 and 2 are made jointly and severally liable.
116. Accordingly, the following directions are passed by this Court: a. The learned Tribunal erred in granting adequate compensation to the claimants and therefore, the same stands enhanced from Rs. Rs. 2,72,922/- to Rs. 18,59,466/- along with interest @ 9% per annum. b. It is further held that the respondent no. 2/owner along with the respondent no. 1/driver are jointly and severally liable to pay the compensation amount of Rs. 18,59,466/- to the appellant/victim. c. Accordingly, the respondent no. 1 and 2 i.e., the driver and the registered owner of the offending vehicle, respectively, are directed to pay the compensation amount of Rs. 18,59,466/- to the claimant/ appellant within the period of four (4) weeks from the date of receipt of this order, after deducting/adjusting the amount already paid/deposited.
117. In view of the aforesaid discussions on facts and law, the impugned order dated 20th February, 2016 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, South East District/Saket Court, New Delhi in suit bearing no. 335/14 is modified in aforesaid terms.
118. Accordingly, the instant appeal is hereby allowed and stands disposed of along with the pending application(s), if any.
119. The judgment be uploaded on the website forthwith.
JUDGE OCTOBER 8, 2024 rk/mk/ryp