Delhi High Court
Madhvi Devi @ Madhu vs Tara Chand & Ors on 10 September, 2012
Author: G.P. Mittal
$~4 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th September, 2012
+ MAC.APP. 88/2004
MADHVI DEVI @ MADHU ..... Appellant
Through Mr. O.P. Mannie, Advocate
versus
TARA CHAND & ORS .... Respondents
Through None
+ MAC.APP. 122/2004
MUNICIPAL CORPORATION OF DELHI ..... Appellant
Through None
versus
MADHVI DEVI @ MADHU & ANR. .... Respondents
Through Mr. O.P. Mannie, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals (MAC. APP. 88/2004 and MAC. APP.
122/2004) arise out of a common judgment dated 05.12.2003
passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby a compensation of `2,02,000/- was awarded in
favour of Madhvi Devi (Appellant in MAC. APP.88/2004) for
having suffered the injuries in a motor vehicle accident which
occurred on 01.12.1998.
2. For the sake of convenience, the Appellant in MAC. APP. 88/2004
shall be referred as the Claimant and the Appellant in MAC. APP.
122/2004, Municipal Corporation of Delhi, who was owner of the
offending vehicle shall be referred as MCD.
3. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of
truck No.DL-1G-A-0683 by the First Respondent. The Claimant
suffered fracture of both bones of right leg, apart from injuries on
other parts of the body. She was immediately removed to Guru
Teg Bahadur Hospital where she remained admitted from
01.12.1998 to 10.12.1998. The Claimant was not satisfied with the
treatment in GTB Hospital. The Claimant was, therefore, admitted
in Mamta Nursing Home where bone grafting was done. On
account of the injuries suffered, the Claimant became permanently
disabled to the extent of 40% on account of united fracture of both
bones leg (R) with shortening of right leg by one inch, severe
restriction of (R) ankle movement and mild restriction of (R) knee
movement.
4. On appreciation of evidence, the Claims Tribunal found that the
accident was caused due to rash and negligent driving of truck No.
DL-1G-A-0683. It was proved that the Claimant was a housewife.
She was awarded compensation of `1,02,000/-towards loss of
earning capacity on the notional income of `15,000/-.
5. The compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by the
No. various heads Claims Tribunal
1. Medical Expenditure & `80,000/-
Conveyance
2. Permanent Disability ` 1,02,000/-
3. Pain & Suffering ` 10,000/-
4. Special Diet ` 10,000/-
Total ` 2,02,000/-
6. The learned counsel for the Appellant (Claimant) urges that the
compensation awarded towards gratuitous services rendered by the
family members and towards pain and suffering is on the lower
side. No compensation has been awarded towards loss of
amenities and attendant charges. On the other hand, the contention
raised in the Cross-Appeal filed by the MCD is that the
involvement of the truck No. DL-1G-A-0683 owned by it was not
established and thus the MCD was not liable to pay any
compensation.
7. While dealing with the issue of involvement of the truck and the
negligence, the Claims Tribunal held as under:
"12. Onus to prove this issue was upon the petitioner
and in discharge of that onus the petitioner had
produced and examined the aforesaid 4 witnesses in
both the cases which were consolidated during the
course of evidence. In his statement PW1 Satyan
Prakash had produced the MLC No.B-4623/98 dated
01.12.1998 in respect of the petitioner Kalyan Singh
and MLC No.B-4612/98 dated 01.12.1998 in respect of
the petitioner Madhvi Devi @ Madhu from the record
of GTB Hospital and photocopies of the same are
Ex.PW1/A and Ex.PW1/B. On cross examination there
appears no challenge to this. That being so, I find no
reason to discard these facts. Accordingly, from the
statement of PW1 both petitioners, Kalyan Singh and
Madhvi Devi @ Madhu, have proved their respective
MLC. This proves the injury sustained by both the
petitioners on 01.12.1998. PW2 Sh. Kalyan Singh had
deposed that on 01.12.1998 he was going to St.
Stephens Hospital on a two wheeler scooter along with
his wife Madhvi Devi, he was driving the scooter and
Madhvi Devi was sitting on the pillion. At about 1.45
pm when his scooter reached near Pushta No.1, Sonia
Vihar, one truck No.DL-1G-A-0683 came from the side
of Chauhand Patti and hit his scooter from behind; that
he as well as his wife fell down on right and left side
respectively and both of them sustained injuries. He
further deposed that his index finger of the left hand
was fractured and feet of his wife was run over by the
wheel of the truck, and that the accident had taken
place due to the fault of the truck driver. On cross
examination there appears no challenge regarding the
date, time and place of the alleged accident. However,
suggestion has been made to the fact that his scooter
was not hit by the said truck or that it came over the
stones lying on the road and as a result of that he lost
balance and he and his wife fell down. PW3 Madhvi
Devi @ Madhu had also deposed on certain material
facts and corroborated the version of PW2 regarding
the date, time, place and the manner in which the
accident had taken place while she was going to St.
Stephens Hospital with her husband, Kalyan Singh, on
the said two wheeler scooter. On cross examination
nothing has been suggested against the manner of
driving the said truck. However, it has been suggested
that the scooter had fell down due to the fault of her
husband or due to the rash and negligent driving of her
husband. The respondents had produced and examined
RW1 Sh. Tara Chand, respondent no.1, to rebut the
evidence of the petitioner and in his statement he had
admitted the factum of the date, time and place of
driving the said truck but in his statement he has
deposed that he saw the scooter of the petitioner lying
fallen may be due to the mud lying on the side of pushta
which was closed for traffic. The case suggested to
PW2 is substantially different as suggested to PW3 and
at the same time no evidence has been led in that
regard to prove that the scooter was already lying
fallen down. However, no reason has been extended as
to why the police has falsely implicated them in the said
accident that had taken place with the said truck. He
has admitted that the case was registered vide the said
FIR and he was arrested and the vehicle was also
seized. In view of the testimony of PW2 & 3,
registration of the case against respondent No.1,
seizure of the said vehicle and arrest of respondent
no.1. I find that the accident had taken place due to the
rash and negligent driving of the said truck by
respondent no.1 which resulted in injuries sustained by
the petitioner on his/her person. Accordingly, I hold
that the petitioners have proved sustaining injuries on
their person because of the accident with truck No.DL-
1G-A-0683 by the rash and negligent driving of
respondent no.1 at the said date, time and place."
8. The MCD and its driver merely denied the involvement of the
truck No. DL-1G-A-0683 in the accident. But, at the same time, no
reason was given for making a false statement by the Claimant and
her husband PW2 Kalyan Singh and PW3 Madhvi Devi's
testimony are corroborated by the registration of the criminal case
against the driver of the truck. In the absence of any explanation
as to why the MCD driver was falsely implicated or in the absence
of any suggestion to them in their cross-examination, I affirm the
Claims Tribunal's finding that the accident was caused by the rash
and negligent driving of truck No.DL-1G-A-0683 by the
Respondent No.1.
9. As far as award of compensation is concerned, Section 166 of the
Motor Vehicles Act, 1988(the Act) enjoins payment of just
compensation. In General Manager, Kerala Road Transport
Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2
SCC 176, the Supreme Court held as under: -
"5......The determination of the quantum must answer what
contemporary society "would deem to be a fair sum such as
would allow the wrongdoer to hold up his head among his
neighbours and say with their approval that he has done the
fair thing". The amount awarded must not be niggardly
since the law values life and limb in a free society in
generous scales'. All this means that the sum awarded must
be fair and reasonable by accepted legal standards."
10. The disability certificate Ex.PW3/D shows that the Claimant
suffered shortening of his right leg by one inch and restriction of
movement of right ankle and mild restriction in knee movement
(R). No expert evidence was produced as to the exact impact of
the disability on the Claimant's work as a housewife. In the
circumstances, I would take that the Claimant's capacity to work
as a housewife and render gratuitous services must be affected by
only 20%. The Claims Tribunal had awarded loss of the gratuitous
services on the notional income of `15,000/-.
11. This case is covered by the judgment of this Court in Royal
Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh
& Ors., MAC.APP. 590/2011, decided on 30th January, 2012. This
Court noticed the following judgments of the Supreme Court:-
(i) General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.) and
Ors. (1994) 2 SCC 176,
(ii) National Insurance Company Limited v. Deepika & Ors.,
2010 (4) ACJ 2221,
(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del
1,
(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC
197,
(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami &
Ors., AIR 1962 SC 1,
(vi) A. Rajam v. M. Manikya Reddy & Anr.,
MANU/AP/0303/1988,
(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and
(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),
and laid down the principle for determination of loss of
dependency on account of gratuitous services rendered by a
housewife. Para 34 of the judgment in Master Manmeet Singh
(supra) is extracted hereunder:-
"34. To sum up, the loss of dependency on account of
gratuitous services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a
Graduate.
(ii) Minimum salary of a Matriculate where she is a
Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed
income in (i), (ii) and (iii) where the age of the
homemaker is upto 40 years; the increase will be
restricted to 15% where her age is above 40 years but
less than 50 years; there will not be any addition in
the assumed salary where the age is more than 50
years.
(v) When the deceased home maker is above 55 years but
less than 60 years; there will be deduction of 25%;
and when the deceased home maker is above 60 years
there will be deduction of 50% in the assumed income
as the services rendered decrease substantially.
Normally, the value of gratuitous services rendered
will be NIL (unless there is evidence to the contrary)
when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards
the gratuitous services is much less, as there are
greater chances of the husband's re-marriage. In
such cases, the loss of dependency shall be 50% of the
income as per the qualification stated in (i), (ii) and
(iii) above and addition and deduction thereon as per
(iv) and (v) above.
(vii) There shall not be any deduction towards the
personal and living expenses.
(viii) As an attempt has been made to compensate the loss
of dependency, only a notional sum which may be
upto ` 25,000/- (on present scale of the money value)
towards loss of love and affection and ` 10,000/-
towards loss of consortium, if the husband is alive,
may be awarded.
(ix) Since a homemaker is not working and thus not
earning, no amount should be awarded towards loss
of estate."
12. The Claimant was aged 34 years. There was no evidence with
regard to her educational qualification. Thus, the minimum wages
of a non-matriculate has to be taken to compute the award of
compensation towards loss of gratuitous services. Thus, the loss of
earning capacity has to be in accordance with the percentage of
loss in the gratuitous services rendered by a housewife. Thus, the
loss of earning capacity comes to `1,02,240/- (`2,130/- + 25% x
12 x 16 x 20%).
13. The Claimant remained in GTB Hospital for ten days and then in
Mamta Nursing Hospital for one month. She remained an outdoor
patient. Thus, the Claimant must have not been able to carry
household work for a period of six months and she would have
needed an attendant to look after her during that time. I would
award a compensation of `12,000/- (`2000 x 6) for the same.
14. Keeping in view the nature of injuries, period of hospitalization
and treatment, even if the accident occurred in 1998 the
compensation of `10,000/- towards pain and suffering is on the
lower side. The same is raised to `25,000/-.
15. Taking into consideration the fact that there is shortening of the leg
by one inch and restriction in ankle and knee movement, the
Claimant would have difficulty in squatting, running and carrying
out day to day activities. She is entitled to be compensated for the
same. Considering that this accident took place in the year 1998, I
would make a provision of `25,000/- towards loss of amenities in
life.
16. The Compensation awarded is recomputed as under:
Sl. Compensation under Awarded by Awarded by
No. various heads the Claims this Court
Tribunal
1. Medical Expenditure `80,000/- ` 80,000/-
& Conveyance
2. Permanent Disability ` 1,02,000/- ` 1,02,240/-
/Loss of Earning
Capacity
3. Loss of Amenities in - ` 25,000/-
Life
3. Attendant Charges - ` 12,000/-
(`2000 x 6)
3. Pain & Suffering ` 10,000/- ` 25,000/-
4. Special Diet ` 10,000/- ` 10,000/-
Total ` 2,02,000/- ` 2,54,240/-
17. The enhanced compensation of `52,240/- shall carry interest @
7.5% from the date of the filing of the Petition till its payment.
The enhanced compensation awarded shall be released to the
Claimant on deposit.
18. The Respondent MCD is directed to deposit the enhanced
compensation of `52,240/- along with interest with the Registrar
General of this Court within six weeks.
19. The MAC. APP. 88/2004 is allowed in above terms.
20. The MAC. APP.122/2004 is dismissed.
21. Statutory amount of `25,000/-, if any, deposited shall be refunded
to the MCD.
22. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 10, 2012
pst
