Delhi High Court
Master Shanker vs Shri Suresh Kumar & Ors on 2 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd May, 2012
+ MAC.APP. 174/2009
MASTER SHANKER ..... Appellant
Through: Mr. H.S. Gautam, Advocate
versus
SHRI SURESH KUMAR & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary,
Advocate for R-3.
Mr. Sanjay Rawat, Advocate
for R-4.
Mr. Banarsi Lal, Adv. for R-5.
+ MAC.APP. 196/2012
SHRI SURESH KUMAR ..... Appellant
Through Mr. Banarsi Lal, Adv.
versus
MASTER SHANKER ..... Respondent
Through Mr. H.S. Gautam, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a judgment dated 10.10.2008
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a compensation of `1,33,000/- was awarded
in favour of Master Shanker (the Claimant) who suffered
multiple injuries including fracture pelvis-hemoperitoneum in
an accident which occurred on 26.11.1997.
2. Immediately after the accident, the Claimant was admitted to
Safdarjung Hospital. On the same day, he was shifted to Mata
Chanan Devi Hospital where he remained admitted from
26.11.1997 to 03.12.1997. The Appellant underwent surgery in
Mata Chanan Devi Hospital . It was claimed that the Appellant
spent a sum of `50,000/- towards treatment, and he also
suffered in his studies.
3. Respondent No.4 was stated to be the registered owner and
financer of the vehicle, Respondent No.5, the owner and
Respondent No.3 the Insurer of the vehicle.
4. The Claims Tribunal found that the accident was caused on
account of the rash and negligent driving of the Maruti Van
No.DL-8C-4651 driven by its driver Suresh Kumar
(Respondent No.1) since deleted. He admitted that he did not
possess any driving licence on the date of the accident. The
Claims Tribunal relied on Section 2 (30) of the Motor Vehicles
Act to return a finding that in case of a Hire Purchase
Agreement, the person in possession of the vehicle, under that
Agreement would be the owner. Thus, the liability to pay the
compensation was fastened on Respondent No.5.
5. The compensation awarded by the Tribunal is tabulated
hereunder:-
Sl. No. Compensation under various Awarded by the
heads Claims
Tribunal
1. Medical Bills `23,000/-
2. Pain & Suffering `70,000/-
3. Loss of Studies `25,000/-
4. Special Diet `10,000/-
5. Conveyance `5,000/-
Total ` 1,33,000/-
6. MAC APP.174/2009 has been filed for enhancement of
compensation whereas Cross-Objections being MAC
APP.196/2012 has been filed by Respondent No.5 on the
ground that the negligence on the part of the driver was not
proved; the compensation towards pain and suffering was
excessive and exorbitant; compensation of `25,000/- awarded
towards loss of studies was not made out as the Appellant's
name was struck off from the school on 15.07.1996 much
before the date of the accident which occurred on 26.11.1997
and the compensation of `5,000/- awarded towards Conveyance
was alleged to be on the higher side. The liability to pay the
compensation is also disputed.
NEGLIGENCE:-
7. On the question of negligence, the Claims Tribunal held as
under:-
"11. It also stands proved by the statement of PW1
that the offending vehicle was being driven in a very fast
speed and negligent manner and hit the petitioner as a
result of which he sustained grievous injuries. There is
nothing in the cross examination of this witness to hold
that the accident had not taken place due to the rash and
negligent driving on the part of Respondent No.1.
Presence of this witness at the spot also cannot be
doubted because FIR Ex.PW-1/1 was recorded on his
statement. Respondent No.1 in his WS has not taken up
any defence regarding rashness and negligence in
driving on his part. His plea simply is that he has been
acquitted in the criminal case. It is a settled law that the
nature of proof in a criminal case is beyond reasonable
doubt while the nature of proof in a civil matter like
MACT is by the preponderance of evidence. It is also a
settled law that acquittal in a criminal case does no
proves the fact that the vehicle was not being driven in a
rash and negligent manner. The site plan Ex.PW-1/3
clearly shows that the accident had taken place at point
A which is not middle of the road. The negligence on the
part of the injured, therefore, cannot be attributed. PW-1
has clearly identified that Respondent No.1 is the driver
of the offending vehicle on the date his statement was
recorded. The order sheet of the date i.e. 01.10.02 on
which date his statement was recorded also shows that
Respondent No.1 the driver of the offending vehicle was
present in the court as his attendance had been marked
in the order sheet. This further proves that the vehicle
was being driven by Respondent No.1 at the time of the
accident. I thus hold that the accident had taken place
due to rash and negligent driving of offending vehicle by
respondent No.1......"
8. The manner of the accident was not seriously challenged in the
cross-examination of PW-1 who was an eye witness to the
accident. The Claims Tribunal's finding on negligence is well
reasoned and logical. There is no ground to interfere with the
said findings.
QUANTUM OF COMPENSATION:-
9. At the time of the accident, the Appellant was a student of 7th
standard. As stated earlier, immediately after the accident, the
Appellant was removed to Safdarjung Hospital where he was
diagnosed to have suffered blunt injury in the abdomen, fracture
pelvic and fracture right superior and inferior pubic rami
(Ex.PW-1/7). Then he was shifted to Mata Chanan Devi
Hospital. The Discharge Slip Ex.PW-1/8 issued by Mata
Chanan Devi Hospital shows that the Appellant remained
admitted in the hospital from 26.11.1997 to 03.12.1997. He
underwent surgery in the said hospital. He was discharged with
an advice to take almost a dozen medicines as prescribed and to
have the dressing changed on every Wednesday and Saturday.
The Appellant proved a hospital bill for payment of `18,950/-
(Ex.PW-1/10) and the bills (Ex.PW-1/11 to Ex.PW-1/24)
regarding purchase of medicines. Ex.PW-1/25 and Ex.PW-1/26
are the OPD cards of Mata Chanan Devi Hospital to show that
the Appellant remained under treatment as an Out Door Patient.
10. Compensation of `25,000/- was towards reimbursement of the
medical bills including the bill for `18,950/- which was towards
surgery and Appellant's stay as an Indoor Patient in Mata
Chanan Devi Hospital. The same cannot be disputed.
11. It is difficult to measure in terms of money the pain and
suffering which has been suffered by the claimant on account of
serious injuries caused to him in a motor 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 of a motor accident. For this purpose, the Claims
Tribunal and the Courts normally consider the nature of injury;
the parts of the body where the injuries were sustained;
surgeries (if any) underwent by the victim; confinement in the
hospital and the duration of the treatment.
12. Considering the nature of injuries including fracture pelvic;
injury on the stomach; surgery underwent; the period of
hospitalization and Outdoor treatment, a compensation of
`70,000/- on account of pain and suffering cannot be said to be
excessive or exorbitant.
13. Similarly, a compensation of `10,000/- towards special diet and
`5,000/- towards conveyance is just and reasonable in view of
the fact that a person with such injuries takes several months to
recover and can travel to the hospital only in a taxi.
14. A very forceful argument has been advanced by the learned
counsel for Respondent No.5 on the award of `25,000/- as
compensation towards Loss of studies. It is urged by the
learned counsel for Respondent No.5 that a perusal of the
School Leaving Certificate dated 01.08.2002 would reveal that
name of the Appellant was struck off from the school on
15.07.1996, whereas this accident took place on 26.11.1996.
Thus, there was no Loss of Studies on account of the injuries
suffered by the claimant in the accident. On this aspect, PW-1
Nanak Chand (the Appellant's father) testified that at the time
of the accident his son was aged about 12 years and was a
student of 7th standard in DAV High Secondary School, Sadar
Bazar, Delhi Cantt. Thereafter his son could not continue his
studies due to the injuries and subsequently lost his interest in
the studies. Although, it is borne out from the School Leaving
Certificate, copy of which was also placed on record by the
Appellant's father for release of the interim compensation, that
the Appellant's name has been struck off from the School on
15.07.1996 i.e. before the accident, however, PW-1's testimony
was not challenged in his cross-examination that his son had
lost interest in his studies after the accident and therefore could
not resume his studies.
15. The Appellant remained under treatment for a period of three
months. He was also entitled to be compensated for the
Attendant's salary, though no compensation has been awarded
for the same. Even if, his family members rendered gratuitous
services, the Appellant was entitled to be compensation for the
same. (See Delhi Transport Corporation and Anr. v. Lalita AIR
1981 Delhi 558).
16. Thus, in the circumstances, it is established that the Appellant
was not studying in DAV School on the date of the accident, yet
I would not interfere with the award of `25,000/- which I would
take towards gratuitous services rendered to the Appellant as
also for Loss of Amenities and Expectations of Life.
17. The compensation of `1,33,000/- awarded is just and
reasonable.
LIABILITY:-
18. It is urged by the learned counsel for Respondent No.5 (the
Cross-Objectionist) that Respondent No.5 was neither the
registered owner nor the rightful owner of the offending
vehicle. Thus, he could not have been fastened with the liability
to pay the compensation.
19. The Claims Tribunal relied on the admission made by
Respondent No.5 and held that he was the rightful owner of the
offending vehicle.
20. It would be appropriate to refer to the written statement filed by
Respondent No.5. In Para 2 of the written statement dated
08.08.2007, Respondent No.5 stated that he was the Superdar
and the owner of the offending vehicle. He took up the plea that
the offending vehicle was fully insured and the Insurance
Company was liable to pay the compensation.
21. In the subsequent written statement dated 19.12.2007 in para 4
(i) and Para 6, it was admitted that Respondent No.1
(Respondent No.5 herein) was the owner and as per law, the
Financer and the Insurance Company are liable to pay the
compensation.
22. Although, the documents with regard to the Hire Purchase
Agreement have not been proved on record, but the same loses
significance in view of the clear cut admission by Respondent
No.5 that he was the Owner and Respondent No.4 was the
Financer.
23. The provision of Section 2 (30) of the Act with reference to the
term „owner of the vehicle‟ where the vehicle is subject to Hire
Purchase Agreement was interpreted in Godavari Finance Co.
v. Degala Satyanarayanamma & Ors, AIR 2008 SC 2493 and it
was held that the person in possession of the vehicle and not the
financer would be liable to pay the damages in a motor
accident. Para 13 of the report is extracted hereunder:-
"13. In case of a motor vehicle which is subjected to a
hire-purchase agreement, the financer cannot ordinarily
be treated to be the owner. The person who is in
possession of the vehicle, and not the financer being the
owner would be liable to pay damages for the motor
accident."
24. Thus the liability to pay the compensation by Respondent No.5
as owner is established.
25. Unfortunately, Respondent No.1 (before the Claims Tribunal)
admitted in his statement that he was not possessing any valid
driving licence on the date of the accident i.e. 26.11.1997.
Respondent No.5 has not come out with any explanation as to
the circumstance under which the vehicle was entrusted or came
in the possession of the driver (Respondent No.1 before the
Claims Tribunal). Thus, the Claims Tribunal rightly made the
Insurance Company liable to pay the compensation because of
its statutory liability with an option to recover the same from
Respondent No.5 as he was guilty of breach of the terms of the
policy condition.
26. The impugned order cannot be faulted on the question of
negligence, quantum of compensation and the liability to pay
the compensation.
27. Both the Appeals are devoid of any merit; the same are
accordingly dismissed.
(G.P. MITTAL)
JUDGE
MAY 02, 2012
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