Full Text
HIGH COURT OF DELHI
Date of order: 6th August, 2024
RELIANCE GENERAL INSURANCE CO LTD .....Appellant
Through: Mr. A K Soni, Advocate (Through VC)
Through: Mr. Navneet Goyal, Advocate for R-1
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant appeal has been filed on behalf of the appellant under Section 173 of the Motor Vehicles Act, 1988 against the impugned judgment/award dated 10th April, 2018 passed by the learned presiding officer, MACT, Rohini Courts, New Delhi in case bearing MACT NO. 450739/2016 (hereinafter “impugned order”).
2. The brief facts that led to the filing of the present appeal are as follows: a. On 16th June, 2012 at about 12:10 am, the claimant/injured namely Sh. Harsh Mann was driving the vehicle (car) bearing no. HR-70U-0006 (“injured vehicle”) with one Sh. Vikas Mann, who sitting on the front left seat of the car. They were returning from Naya Bazar, Khari Baoli and when they reached Burari Crossing, their vehicle collided with a dumper bearing no. HR-56-7679 (hereinafter “offending vehicle”) which was standing idle/stationary in the middle of the road without any indication and the driver of the dumper (respondent no.2) was not present in the vehicle. Due to the said accident, the injured sustained multiple injuries and was taken to the Trauma Centre and later shifted to Max Super Speciality Hospital, Shalimar Bagh, Delhi. b. The injured claimed compensation from the driver, owner and the insurance company by filing MACT case bearing NO. 450739/16. c. In the aforementioned claim petition, the driver and the owner did not file any written statement, however, a written statement was filed by the insurance company (respondent no.1 therein/appellant herein) denying the case of the claimant and admitting the insurance of the aforementioned dumper vehicle at the time of the accident. d. The learned Tribunal held that the accident occurred due to rash and negligent driving of the dumper vehicle and awarded compensation in the sum of Rs. 33, 71, 048/- vide the impugned order dated 10th April, 2018 in favour of the injured/claimant. e. Aggrieved by the aforesaid order, the present appeal has been filed seeking setting aside of the same.
3. Learned counsel appearing on behalf of the appellant submitted that the impugned order passed by the learned Tribunal is vague and illegal as the learned Tribunal has failed to appreciate the evidence placed on its record.
4. It is submitted that the learned Tribunal erred in holding that the driver of dumper vehicle was driving in a rash and negligent manner which caused the accident, as the same was not based on any cogent evidence.
5. It is submitted that the learned Tribunal grossly erred in not holding the respondent no.1 herein (driver of the injured vehicle) liable for rash and negligent driving in causing the alleged accident.
6. It is submitted that the respondent no.1/claimant collided with the rear portion of the offending vehicle in order to save a cow and in a criminal case registered in regard to the instant matter, the police had investigated the alleged case and found that the respondent no. 1 was solely responsible for causing the alleged accident due to his rash and negligent driving. It is also submitted that a cancellation report was also filed before the concerned Metropolitan Magistrate and the Investigating Officer filed the same with the DAR before the learned Tribunal.
7. It is further submitted that the learned Tribunal failed to consider that as per the statement of the father of the respondent no.1, recorded by the concerned Metropolitan Magistrate, the accident in question occurred while saving a cow and the driver of the dumper vehicle was not at fault. It is further submitted that the learned Tribunal erroneously relied upon the testimony of PW[4], the father of respondent no.1 in holding respondent no. 2 liable for causing the accident.
8. It is submitted that the learned Tribunal ought to have held the respondent no. 1 guilty of contributory negligence in causing the accident in question.
9. It is submitted that the learned Tribunal erred in awarding compensation to the respondent no. 1 to the tune of Rs. 33,71,048/- which is baseless, as it is contrary to the evidence placed on record. It is further submitted that the compensation award is not maintainable as the respondent no.1 failed to prove negligence on part of the driver of the dumper vehicle.
10. It is submitted that the learned Tribunal grossly erred in considering 100% functional disability in view of the disability certificate, exhibiting 72% permanent disability as loss of earning capacity to compute future loss of earning which summed up to Rs, 18,42,048/- without any supportive and cogent medical evidence on record.
11. It is submitted that the learned Tribunal erred in not determining the effect of the permanent disability of respondent no.1 on his actual earning capacity which effected the calculation of future loss of earning and erroneously resulted in the sum of Rs. 18,42,048/- being awarded by the learned Tribunal. It is further submitted that as per the law laid down in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the Hon’ble Supreme Court held that it is the role of the Tribunal to determine whether permanent disability of the injured has affected or will affect the earning capacity of the earning capacity of the injured.
12. It is submitted that the learned Tribunal failed to consider that the driving licence of the respondent no. 2 was not valid at the time of the accident and therefore, the owner of the vehicle has committed a fundamental breach of the terms and conditions of the insurance policy.
13. Therefore, in light of the foregoing submissions, it is prayed that the present appeal may be allowed and reliefs may be granted, as prayed.
14. Per Contra, learned counsel appearing on behalf of the respondent NO. 1 vehemently opposed the arguments made by the appellant and submitted that the injured was aged about 20 years at the time of the accident, had passed his 12th grade examination and was seeking admission in college.
15. It submitted that the respondent no.1 sustained severe head injuries and the medical investigation revealed that he had suffered right TP depressed fracture with multiple haemorrhagic contusions and Diffuse Cerebral Edema. It is submitted that the respondent no.1 is still bed ridden and under constant care as he is unable to perform daily tasks and cannot respond or understand any verbal commands since, and that he is in a vegetative condition.
16. It is submitted that the neurological disability of the respondent no. 1 was assessed at 72% which has rendered him permanently disabled to the extent of 100%.
17. It is submitted that Sh.Vikas Mann, the sole eyewitness to the accident, testified that the accident occurred due to the improper parking of a dumper truck in the middle of the road. It is further submitted that no rebuttal evidence was presented by either the driver/owner of the dumper truck or its insurance company, and no other eyewitnesses were examined in the record besides Sh. Vikas Mann.
18. It is submitted that the insurance company’s contention that the police case closure is irrelevant to the learned Tribunal’s claim proceedings is baseless because the learned Tribunal conducted an independent inquiry for determining compensation, which is not affected by the outcomes of other proceedings. It is further submitted that the police case trial and the learned Tribunal’s inquiry are independent and separate proceedings and that the only influencing factor would be a confession by the injured party of their own negligence, which is not present in the instant case.
19. It is submitted that there has not been any contention raised against the fact that the dumper truck was standing idle in the middle of the night without parking lights or some form of demarcation or that the driver of the vehicle was diverting vehicles away.
20. It is submitted that the insurance company is trying to evade the liability to pay compensation by taking various pleas, however, no witness was examined by the insurance company.
21. It is submitted that the learned Tribunal erred in not considering future prospects on the income of the injured as per the judgment of National Insurance Co. Ltd. v. Pranay Sethi & others, 2017 (16) SCC 680, wherein, it was held that the injured is entitled to benefits of future prospects.
22. It is submitted that the learned Tribunal has rightly considered the disability as 100% qua whole body after considering the neurological disability of 72%.
23. It is submitted that the learned Tribunal erred in allowing meagre compensation under non pecuniary heads, i.e., Rs. 50,000/- for pain and suffering, Rs. 50,000/- for loss of amenities of life, Rs. 50,000/- jointly for conveyance & special diet. It is further submitted that in light of the trauma and hardships faced by the injured and his family, the compensation under these non-pecuniary heads must be increased.
24. It is submitted that the learned Tribunal has not allowed compensation for loss of marriage prospects which ought to have been allowed and no amount has been allowed for future medical expenses which may be allowed as the injured is bed ridden.
25. Hence, in view of the forgoing submissions, it is submitted that the appeal may be dismissed.
26. Heard the learned counsel appearing for the parties and perused the records.
27. The appeal is admitted.
28. It is the case of the appellant that the learned Tribunal erred while passing the impugned order as it failed to appreciate the evidence on record. It has been contended that the learned Tribunal erred in finding respondent no. 2 (dumper driver) negligent without cogent evidence while not holding respondent no. 1 (injured vehicle driver) liable.
29. It has also been contended that the accident occurred as respondent no. 1 tried to avoid hitting a cow and the police report found him solely responsible which was confirmed by the father of the respondent no. 1 in the hearing of the cancellation report. It is further contended that the learned Tribunal wrongly relied on the father’s testimony and ought to have found respondent no. 1 guilty for the contributory negligence.
30. It is contended that the awarded compensation is baseless, improperly considering 100% functional disability without cogent medical evidence. It is further contended that respondent no. 1’s driver's license was invalid at the time of the accident, constituting a breach of the insurance policy terms. Therefore, the impugned order, being erroneous, is liable to be set aside.
31. In rival submissions, it has been submitted on behalf of the respondent no.1 that he is a 20-year-old college aspirant who suffered severe head injuries resulting in 72% neurological disability, rendering him 100% permanently disabled and in a vegetative state. It has been contended that the eyewitness namely Sh. Vikas Mann testified that the accident was caused by the improper parking of the dumper truck, with no rebuttal evidence from the driver/owner or the insurance company.
32. It has been also contended that the police case closure is irrelevant to the learned Tribunal’s independent inquiry for compensation and that the insurance company failed to present any witnesses, and is attempting to evade its liability. It has been further contended that the learned Tribunal rightly considered the disability as 100% and should have factored in future prospects and increased non-pecuniary compensation for pain, suffering, loss of amenities, and future medical expenses.
33. At this juncture, this Court deems it pertinent to peruse the impugned order passed by the learned Tribunal. The relevant extracts of the same are reproduced as under: “ Issue No. 1
7. That, in order to establish his claim, Sh. Narender Mann S/o Sh. Narain Singh Mann, father of the injured, examined himself and tendered his evidence by way of affidavit which is Ex. PW4/A and bears his signature at points A and B. He relied upon the following documents: S no. Name of documents Marked/ Exhibited As 3. Copy of MLC Mark “A” 4. Copy of election I card Ex. PW3/1-: and Ex. PW3/2
5. Copies of discharge summary, prescriptions and medical test report etc. Ex. PW3/3 (colly)
6. Copy of original bills and receipts of expenses incurred on treatment Ex. PW2/4
7. Copy of school certificate Ex. PW2/5
8. That Sh. Narender Mann S/o Sh. Narain Singh Mann, father of the injured, in his testimony, deposed that his son was injured in a road traffic accident on 16.06.2012. The injured/petitioner, Harsh Mann, was driving car bearing no. HR-70U-0006 with Sh. Vikas Mann sitting in the front left seat of the car. The car was being driven by the petitioner/injured at a normal pace. When the petitioner with Vikas Mann was returning from Naya Bazar Khari Baoli and going towards their residence in village Alipur, they reached ahead of Burari Crossing. At that time, their car collided with the offending vehicle, i.e., a dumper bearing registration no. HR-56-7679, which was standing idle/stationary in the middle of the road without any indication or demarcation. The driver of the dumper was not present, and the petitioner sustained multiple head injuries.
9. It has also been deposed that on 16.06.2012 (in the night of 15.06.2012 and 16.06.2012), the petitioner sustained multiple head injuries and suffered a right TP Depressed Fracture with Multiple Hemorrhagic Contusions & Diffused Cerebral Edema. He was taken to the Trauma Centre where first aid was given and was then shifted to Max Super Speciality Hospital, Shalimar Bagh, where he remained admitted from 16.06.2012 to 29.07.2012. The petitioner was again admitted to Apollo Hospital from 21.02.2014 to 27.02.2014, and then again to Max Super Specialty Hospital from 13.03.2014 to 22.03.2014. During hospitalization, the petitioner also underwent head surgery.
10. That FIR No. 155/2012, U/s 279/337 of IPC, District North West, Delhi, PS Jahangir Puri, Delhi, was registered.
11. It has also been deposed by the father of the injured that his son was a student at the time of the accident and his date of birth is 09.01.1993, which is mentioned in his 12th class certificate, making his age 19 years at the time of the accident.
12. For the aforesaid purpose, the testimony of PW-1, who is the father of the petitioner/injured, and Vikas Mann, who is injured and an eyewitness in another case titled as Vikas Mann Vs. Om Parkash & Ors., are very material and inspire relevancy. PW-4 also deposed that the accident took place because of the wrongful stationary position of the vehicle by R-
1.
13. It is worth mentioning that the petitioner is required to prove the rashness and negligence on the part of the driver of the offending vehicle, and the standard of proof beyond reasonable doubt does not apply in proceedings like the present claim petition. Reliance is placed on Bimla Devi Vs. HRTC (2009) 13 SC 530, wherein the Hon'ble Supreme Court has held as under: "xxxx it was necessary to be borne in mind that strict proof of accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance. The standard of proof beyond reasonable doubt could not have been applied. Xxxxx"
14. It has been argued by Id. Counsel for the insurance company that the petition may kindly be dismissed on the ground that in case FIR No. 155/2012, U/s 279/337 of IPC, PS Jahangir Puri, Delhi, a cancellation report has been filed by the police and the accident took place because of rash and negligent driving of the driver of the Skoda Car who had hit his car in a stationary dumper. Whereas Ld. Counsel for the petitioner has argued that the accident took place because of the wrong stationary of the dumper in the middle of the road by the driver of the dumper, and the petitioner is entitled to compensation.
15. Having heard the arguments advanced by Id. Counsel for the parties, this Tribunal is of the considered view that Sh. Narender Mann S/o Sh. Narain Mann, father of the injured, has tendered his affidavit of evidence Ex. PW4/A wherein he has categorically deposed that the accident took place because of the stationary position of the vehicle/dumper in the middle of the road without any signal or blinker. There was no indicator on the truck/dumper to indicate that the truck/dumper was parked so that any person coming from behind could be cautious. Therefore, there was negligence on the part of the driver of the offending truck/dumper bearing registration no. HR-56-7679. Reliance is placed upon New India Assurance Company Ltd. Vs. Kalpana & Ors., 2007, ACJ 825, decided by Hon'ble Supreme Court of India Dt. 17.01.2007.
16. That, in another connected matter of the same accident, Sh. Vikas Mann, who is also petitioner/injured in another petition titled as Vikas Vs. Om Prakash & Ors. and an eyewitness of the accident, has deposed that the accident took place because of the wrong stationary position of the dumper/truck bearing no. HR-56-7679 on the road without any reflector or indication by R-1. The insurance company has not examined any witness to prove that the accident took place because of the rash and negligent driving of the Skoda car in which the petitioner was driving.
17. That, in view of the aforesaid discussion and keeping in view the material available on record and as discussed above, it has been duly proved by way of preponderance of probabilities that the accident took place on 15/16.06.2012 at about 12:10 AM because of the standing idle/stationary vehicle, i.e., Dumper bearing registration no. HR-56-7679 on the road without any indication or demarcation, to which the petitioner/injured sustained multiple injuries on his body. Therefore, issue no. 1 is accordingly decided in favor of the petitioner/injured and against the respondents. Issue No. 2
18. That, since the petitioner has proved that the accident took place because of the rash and negligent driving of respondent no. 1, he is entitled to the amount spent by him on his treatment and also compensation on other heads: Medical Expenses
19. That, Sh. Narender Mann S/o Sh. Narain Mann, father of the injured, in his testimony, deposed that on 16.06.2012 (in the night of 15.06.2012 and 16.06.2012), his son Harsh Mann sustained multiple head injuries and was taken to Trauma Centre where first aid was given and was shifted to Max Super Speciality Hospital, Shalimar Bagh, where the petitioner/injured remained admitted from 16.06.2012 to 29.07.2012. The petitioner was again admitted to Apollo Hospital from 21.02.2014 to 27.02.2014, then again to Max Super Specialty Hospital from 13.03.2014 to 22.03.2014. The petitioner has placed on record medical bills of Rs. 13,79,000/-. Therefore, in these facts and circumstances, this tribunal awards a sum of Rs. 13,79,000/- (Rupees Thirteen Lacs Seventy Nine Thousand Only) towards medical expenses. Loss of Income
20. That, the petitioner/injured was a student at the time of the accident and was not earning anything from any source. Therefore, he is not entitled to any compensation under this head. Pain and Suffering
21. That, as per law laid down by the Hon'ble Delhi High Court, Section 160 of the Motor Vehicles Act prescribes the Claim Tribunal to hold an inquiry into the claim to make an award determining the compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
22. That in the matter titled as "Helen C. Rebello Vs. Maharashtra" reported at SRTC, 1999 (1) SCC 90, Hon'ble Supreme Court held as under:- "xxxxx The Court and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any." xxxxx"
23. That the Hon'ble Delhi High Court in the matter titled as "Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.2012, has held as under:- "xxxxx It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury: the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
24. That, the father of the injured/petitioner has testified that his son sustained multiple head injuries and was taken to Trauma Centre where first aid was given and was shifted to Max Super Speciality Hospital, Shalimar Bagh, where the petitioner remained admitted from 16.06.2012 to 29.07.2012 as well as the treatment of the doctors of different hospitals and as per the MLC the nature of injuries are "Grievous". It is proved that the petitioner/injured had suffered multiple and grievous injuries and he must have suffered mental tension, hurt, pain, and agony, therefore, in these facts and circumstances, this Tribunal awards a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) towards pain and suffering to the petitioner/injured.
LOSS OF AMENITIES OF LIFE
25. That, in the present claim petition, there is sufficient material on record to establish that the petitioner/injured had suffered multiple serious injuries on his body and remained hospitalized for many days and was put on liquid diet after his discharge from the hospital. Because of the injuries sustained in the road accident, he would not have been able to enjoy general amenities of life at all, during the period he remained hospitalized and even afterwards, he would have been deprived of many general amenities during that period. He remained under treatment and it is very difficult to bear the pain at a young age. Therefore, in these facts and circumstances, this Tribunal awards a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) towards loss of amenities of life. CONVEYANCE, SPECIAL DIET
26. That, the petitioner/injured must have taken special diet and spent money for conveyance charges, therefore, in the given facts and circumstances, this Tribunal awards a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) on account of conveyance charges and Rs. 50,000/- (Rupees Fifty Thousand Only) on account of special diet. Just Compensation on account of disability
27. That, the disability certificate, issued by the Medical Board of Institute of Human Behaviour & Allied Sciences, shows 72% permanent physical disability which is likely to be permanent in nature due to sequelae of head injury which is proved by PW-5 Dr. Vibha Sharma, Associate Professor of Clinical Psychology, IHBAS, Delhi. Because of the grievous injuries sustained by the petitioner/injured in the road traffic accident and due to said disability, petitioner Harsh Mann is bedridden all the time and is not able to even sit, walk, or speak anything, and is unable to do his work for his whole life. The counsel for the petitioner/injured has argued that 72% disability may kindly be considered as 100% functional disability.
28. This Tribunal is convinced and found force in the argument of Ld. Counsel for the petitioner as the petitioner is bedridden since the day of the accident and there is no possibility of any improvement. Therefore, this tribunal is of the considered view that 100% functional disability is justifiable. The injured is at the young age of 19 years as mentioned in the 12th class certificate and he had suffered multiple and grievous injuries in the road traffic accident. Therefore, the disability is to be considered justifiably 100% functional permanent physical disability and the just compensation is to be awarded on account of 100% functional permanent disability of the injured. Therefore, a multiplier of 18 would be applicable. He has placed on record his 12th class certificate, therefore, he is entitled to compensation as a matriculate on the date of the accident i.e. 16.06.2012 and the wages of matriculates on the date of the accident was Rs. 8,528/- per month. The compensation under this head is assessed as 8,528 x 12 x 18 x 100 / 100 = 18,42,048/-. Therefore, a sum of Rs. 18,42,048/- (Rupees Eighteen Lacs Forty Two Thousand and Forty Eight Only) is awarded under this head. The total compensation is assessed as under:- Medical expenses Rs. 13,79,000/- Loss of income Rs. Nil. Pain and suffering Rs. 50,000/- Loss of Amenities of Life Rs. 50,000/- Conveyance & Special diet etc. Rs. 25,000/- & Rs. 25,000/total 50,000/- Just Compensation on account of disability 18,42,048/- Total 33,71,048/-
29. That, the vehicle in question was insured with the R-3 i.e. Reliance General Insurance Company and there is no breach of any of the conditions of the insurance policy. Therefore, the insurance company is held liable to pay the compensation amount. Therefore, the insurance company is, thus, liable to indemnify the insured u/s 149(1) of MV Act and hence, liable to pay the compensation amount as awarded by the Court in favor of petitioner/injured.
ISSUE NO. 3 RELIEF:
30. In view of my findings on issue no. 1 and 2, this tribunal awards a compensation of Rs. 33,71,048/- (Rupees Thirty- Three Lacs Seventy-One Thousand and Forty-Eight Only) including interim award, if any; along with interest @ 9% per annum in favor of petitioner/injured and against respondent NO. 3 i.e. M/s Reliance General Insurance Company Ltd, w.e.f. date of filing of the DAR/claim petition i.e. 05.10.2012 till the date of its realization (Reliance is placed upon New India Assurance Company Ltd. Vs. Budhya Devi & Ors. Reported at 2010 ACJ 2047).”
34. Upon perusal of the aforementioned excerpts of the impugned order, it is made out that the learned Tribunal addressed three issues. First, whether on the intervening night of 15th and 16th June, 2012, on the carriageway from Burari, before Mukundpur Red Light, Delhi, the driver named Sh. Om Parkash was driving a dumper bearing registration no. HR-56R-7679 in a rash and negligent manner and caused an accident by hitting a car bearing registration no. HR-70-U-0006, resulting in injuries to the petitioner, Sh. Harsh Mann. Second, whether the claimant is entitled to compensation, and if so, what amount of compensation should be and from whom it should be recovered. Third, what relief the claimant is entitled to, based on the findings on the first two issues.
35. With respect to the issue no. 1, the learned Tribunal based its decision on the testimony and evidence provided by Sh. Narender Mann, the father of the injured petitioner, and Sh. Vikas Mann, an eyewitness and injured party in the case. Sh. Narender Mann testified that the accident occurred on the night of 15th and 16th June, 2012 due to the negligent stationary positioning of a dumper bearing registration no. HR-56-7679 in the middle of the road without any signals, indicators, or blinkers. This lack of proper indication led to the collision with the car driven by the respondent no. 1, causing multiple injuries.
36. The learned Tribunal also considered the principle established in judgment dated 15 April, 2009, Bimla Devi v. HRTC in civil appeal NO. 2538/2009, which asserts that strict proof of the exact cause of an accident may not be feasible and that the claimants need to establish their case based on the preponderance of probabilities rather than beyond a reasonable doubt.
37. The learned Tribunal noted that no witnesses were produced by the insurance company to refute the claim that the accident was caused by the improper stationary positioning of the dumper. Consequently, it was determined that the accident was indeed caused by the dumper being parked in the middle of the road without proper signals or demarcation.
38. The learned Tribunal concluded that it had been duly proved, by the preponderance of probabilities that the accident on the night of 15th and 16th June, 2012 occurred due to the negligent stationary positioning of the dumper bearing registration no. HR-56-7679, which lacked any indication or demarcation. As a result, the claimant, Sh. Harsh Mann, sustained multiple injuries. Therefore, issue no. 1 was decided in favour of the claimant and against the respondents.
39. With respect to the issue no. 2, the learned Tribunal based its decision on the established fact that the accident occurred due to the rash and negligent behaviour of the driver of the dumper. Consequently, the respondent no.1, Sh. Harsh Mann, was entitled to compensation for the expenses incurred and the suffering endured due to the accident. Sh. Narender Mann testified that his son sustained multiple head injuries and was hospitalized multiple times between 2012 and 2014. The claimant provided medical bills totalling Rs. 13,79,000/-. Accordingly, the learned Tribunal awarded this amount in full towards medical expenses.
40. The respondent no. 1/claimant was a student at the time of the accident and had no source of income. Therefore, the learned Tribunal concluded that the claimant was not entitled to any compensation under this head. Considering the grievous nature of the injuries and the prolonged hospitalization, the learned Tribunal awarded Rs. 50,000/- towards pain and suffering. This amount was determined based on the extent of physical and mental agony endured by the petitioner.
41. Due to the severe injuries and prolonged hospitalization, the claimant was deprived of general amenities of life, during and after his hospital stay. The learned Tribunal awarded Rs. 50,000/- under this head to compensate for the loss of normal life activities. Further, acknowledging that the claimant must have incurred expenses for special diet and conveyance during his treatment, thus, learned Tribunal awarded Rs. 25,000/- each for conveyance and special diet, totalling to Rs. 50,000/-.
42. The respondent no.1’s 72% permanent physical disability was deemed to be 100% functional disability due to his inability to perform basic activities. The learned Tribunal applied a multiplier of 18 and considered the respondent no. 1’s monthly wage as a matriculate to calculate the compensation. This resulted in an award of Rs. 18,42,048/- in favour of the injured/claimant. The total compensation awarded to the petitioner was Rs. 33,71,048/-, broken down as follows: medical expenses Rs. 13, 79,000/-, loss of income Rs. Nil, pain and suffering Rs. 50,000/-, loss of amenities of life Rs. 50,000/-, conveyance and special diet Rs. 50,000/-, just compensation on account of disability Rs. 18, 42,048/-.
43. The learned Tribunal held that since the vehicle in question was insured with M/s Reliance General Insurance Company (appellant herein) and there was no breach of insurance policy conditions, the insurance company was liable to indemnify the insured and pay the compensation amount of Rs. 33,71,048/- to the claimant/respondent no. 1 herein.
44. With respect to issue no. 3, based on the evidence presented and findings on issues no. 1 and 2, the learned Tribunal decided issue no. 3 in favour of the claimant, awarding a total compensation of Rs. 33,71,048/- to the injured party, Sh. Harsh Mann, with an interest of 9% per annum from the date of filing the claim petition until its realization.
45. The learned Tribunal conclusively held that the appellant, i.e., M/s Reliance General Insurance Company Ltd., is liable to pay the total compensation amount, including the interest, as there was no breach of the insurance policy conditions.
46. Based on the above, there are two issues before this Court, firstly, whether the driver of the dumper was solely responsible for the accident and secondly, whether the amount of compensation warrants reduction? Issue no. 1 - whether the driver of the dumper was solely responsible for the accident?
47. It is contended that the learned Tribunal erred in finding the respondent no. 2 (dumper driver) negligent without cogent evidence while not holding respondent no. 1/claimant(injured vehicle driver) liable.
48. It is contended that the accident occurred because the respondent NO. 1/claimant tried to avoid hitting a cow, and the police report found him solely responsible, which was confirmed during the cancellation report hearing by the respondent no. 1’s father. It is further argued that the learned Tribunal wrongly relied on the father’s testimony and should have found respondent no. 1 guilty of the contributory negligence.
49. It is further contended that respondent no. 1’s driver's license was invalid at the time of the accident, constituting a breach of the insurance policy terms.
50. Before delving into the merits of the instant issue, this Court deems it apposite to state the settled position of law regarding contributory negligence which was discussed by the Hon’ble Supreme Court in Pramod Kumar Rasikbhai Jhaveri v. Karmey Kunvargi Tak, (2002) 6 SCC 45. In the said judgment, the Hon’ble Court held that contributory negligence arises when there has been some act on part of the claimant. It is made out that as per the settled principle of law, contributory negligence comes into play when the act of the claimant significantly contributes to the harm or damage suffered by him. The damage must have been caused as a result of an action or omission on part of the claimant.
51. It is pertinent to note that in order to ascertain contributory negligence, the claimant’s act or omission must have a significant impact on the resulting damage and not a trivial or negligible one. The behavior of the claimant must be such that there was a failure to take reasonable care. The relevant extract of Pramod Kumar Rasikbhai Jhaveri (Supra) is reproduced herein below:
52. Further, in the case of Rajni v. Union of India, (2017) SCC OnLine Del 7442, the Co-ordinate Bench of this Court discussed the principles of contributory negligence wherein it stated that contributory negligence applies when the victim fails to take reasonable care of his own personal safety in the circumstances prevailing at the time of the accident, such that he is blameworthy to the extent that he contributed to his own injury. The relevant paragraph of the said judgment is as under:
he is blameworthy to the extent that he contributed to his own injury. A person is guilty of contributory negligence if he ought to have objectively foreseen that his failure to act prudently could result in hurting himself and failed to take reasonable measures to guard against that foreseeable harm. Contributory negligence is a partial defence that reduces the quantum of damages payable to plaintiff if he fails to safeguard his own interest.”
53. Upon perusal of the aforementioned judicial dicta, it is noted that for a Court to hold contributory negligence in a particular case, it must be proven that the victim of the accident must have acted in a manner that had contributed in the cause of the accident.
54. In so far as the law is concerned, it is settled that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in motor accident claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt.
55. One needs to be bear in mind that the approach of Courts while examining evidence in accident claim cases ought not to determine the assertion of a party due to lack of witnesses or non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead, it should only analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true, i.e., preponderance of probabilities. In Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, the Hon’ble Supreme Court made similar observations.
56. In order to deal with issue no. 1, it is important to ascertain as to which party is responsible for the accident and in order to determine the party responsible for the accident, the learned Tribunal perused the evidence available on its record.
57. It is true that Sh. Narender Mann testified that on 16th June, 2012, his son Sh. Harsh Mann was driving the injured vehicle with one Sh. Vikas Mann sitting in front left seat when their car collided with a stationary dumper (offending vehicle), which was not indicated or marked, causing multiple head injuries to Sh. Harsh Mann.
58. This Court notes that as per Ex. PW4/A, on 16th June, 2012, the claimant sustained severe head injuries including a depressed fracture, haemorrhagic contusions, and cerebral Edema, requiring multiple hospital admissions and surgeries. He was first treated at a Trauma Centre and later at Max Super Speciality Hospital and Apollo Hospital, pursuant to which an FIR was registered under Sections 279/337 of the Indian Penal Code, 1860 for the incident.
59. Furthermore, the learned Tribunal has categorically observed in paragraph no. 16 of the impugned order that in one another connected matter, arising out of the same incident, Sh. Vikas Mann, who is also the injured (sitting in front left seat of the injured vehicle) and eye witness of the accident had deposed that the accident took place because of wrong and illegal parking of the offending vehicle which was stationary in the middle of the road without any indication and parking lights on. Moreover, the insurance company had not examined any of the witnesses to prove that the accident took place because of the rash and negligent driving of the injured.
60. In view of the aforesaid observations, the learned Tribunal held that it had been duly proved as per the principle of preponderance of probabilities that the accident took place on 15th /16th June, 2012 because of standing idle/stationary of the offending vehicle without any indication or demarcation which led to the accident causing severe injuries to the claimant/respondent no. 1.
61. This Court is of the considered view that the contention of the appellant that a criminal case was registered in regard to the accident in question, where a cancellation report has been filed cannot be taken as valid ground to determine the negligence of the respondent no. 1 as the claimant has to merely establish his case on the touch stone of preponderance and standard of proof beyond reasonable doubt cannot be applied, and the same has been rightly noted by the learned Tribunal. It is pertinent to note that the insurance company has also not examined any of the witness to prove that the accident took place because of rash and negligent driving of the respondent no.1 injured/claimant. Thus, sufficient evidence has not been produced to determine contributory negligence.
62. Therefore, it is held that the appellant insurance company has been unable to prove to the contrary that the driver of the offending vehicle was not solely liable for the rash and negligent driving which cause the accident. The contention advanced by the appellant that the learned Tribunal erred in determining that there was contributory negligence on the part of the appellant is unsustainable in the eyes of law due to absence of any substantial evidence on record.
63. Accordingly, issue no.1 stands decided in favour of respondent no.1/claimant. Issue no. 2: whether the amount of compensation warrants reduction?
64. As per the disability certificate placed on record, the respondent no. 3 suffers a permanent disability of 72% and has been awarded 100% functional disability by the learned Tribunal, and compensation has been awarded accordingly by the learned Tribunal.
65. Before delving into the issue, it is pertinent to analyse the settled position of law with respect to the same.
66. In the case of Sidram v. United India Insurance Co. Ltd., (2023) 3 SCC 439, the Hon’ble Supreme Court held that the primary object of awarding damages is to make good the loss suffered as a result of wrong done in a manner that is fair, reasonable and equitable.
67. Further, it is pertinent to note the legal context in which the reduction of compensation is made in the Motor Vehicles Act, 1988. The legislative intent behind the same is to provide relief to victims of accidents. The said Act is a beneficial legislation which has been framed with the objective of providing relief to the victims, their families, in case of genuine claimants.
68. The aforesaid Act aims to protect the rights of victims and their families by ensuring that they receive fair and timely compensation. The underlying principle of the same is to address the genuine claims of those affected, thereby, alleviating their financial and emotional burden resulting from accidents. The goal is to balance the need of the victims with the broader interests of the community and insurance providers, ensuring that justice is served in a manner that is equitable and compassionate.
69. In light of the facts of the instant case, it is true that the respondent no.1 has entered a vegetative state and is unable to perform basic life functions such as walking, eating, etc. In such a circumstance, respondent no. 1 in entitled to the benefit that can be provided under the Motor Vehicles Act, 1988.
70. This Court notes that the respondent no.1’s vegetative state indicates a profound level of impairment. This condition reflects not just a temporary inconvenience but a long-term, perhaps permanent, inability to perform basic functions such as walking, eating, and self-care. This severe disability results in substantial emotional and psychological distress for both the individual and their family.
71. Given the gravity of respondent no.1’s condition, reducing the compensation amount would not align with the purpose of providing adequate relief and support. This Court is of the considered view that compensation should account for the substantial and ongoing medical care, loss of quality of life, and other impacts resulting from the accident. Thus, maintaining the compensation amount is crucial to ensure that respondent no. 3 receives fair support and is not further disadvantaged by a reduction in compensation.
72. This Court is also of the view that the respondent no. 1’s condition will likely require continuous medical attention and specialized care for an indefinite period. This includes expenses for medical treatments, caregiving, and potential modifications to living arrangements to accommodate their needs. Reducing the compensation amount might not cover these extensive and ongoing costs, leaving the affected individual and their family in a precarious financial position.
73. Therefore, bearing in mind the aforesaid observations, this Court is of the view that the appellant’s case seeking setting aside of the impugned award is not sustainable and that the appellant has been unable to make out a case in its favour for reduction in the quantum of the compensation as well.
74. Accordingly, issue no. 2 stands decided in favour of the respondent no.1.
75. In light of the foregoing discussions on law as well as facts of the instant case, the impugned judgment/award dated 10th April, 2018 passed by the learned presiding officer, MACT, Rohini Courts, New Delhi in case bearing MACT no. 450739/2016 is upheld.
76. Accordingly, the appeal stands dismissed along with pending applications, if any.
77. The order be uploaded on the website forthwith.