Delhi High Court
Ashok Aggarwal vs Sushil Kumar & Ors. on 19 February, 2015
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 19th February, 2015
+ MAC.APP. 371/2007
ASHOK AGGARWAL
..... Appellant
Through: Mr.Nitinjya Chaudhary,
Advocate with Mr. Atreya
Singh, Advocate
versus
SUSHIL KUMAR & ORS. ..... Respondents
Through: Mr. J.N. Aggarwal, Advocate
for Respondent no.3.
+ MAC.APP. 233/2007
DELHI TRANSPORT CORPORATION
..... Appellants
Through: Mr. J.N. Aggarwal, Advocate
versus
ASHOK AGGARWAL
..... Respondent
Through: Mr.Nitinjya Chaudhary,
Advocate with Mr. Atreya
Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
1. These two appeals arise out of judgment dated 01.12.2006
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby compensation of Rs.4,98,148/- was awarded
in favour of Ashok Aggarwal (Appellant in MAC. APP.
371/2007) and Delhi Transport Corporation(DTC) (Appellant in
MAC.APP.233/2007) was made liable to pay the compensation
along with interest @ 9% per annum from the date of filing of
the claim petition.
2. MAC.APP.233/2007 is filed by the DTC on the ground that it is
not liable to pay the compensation and, in the alternative, that
the compensation awarded is exorbitant and excessive.
MAC.APP.371/2007 is for enhancement of compensation on
the ground that the compensation has not been computed in
accordance with the law. It is the case of the Claimant that left
arm of the Appellant has become non-functional and is of no
use. The Claims Tribunal ought to have assumed the loss of
earning capacity to be 90%. The award of compensation
towards general damages is also stated to be on the lower side.
3. For the sake of convenience, the Appellant Ashok Aggarwal in
MAC.APP.233/2007 shall be referred to as Claimant and the
Appellant in the Cross-Appeal MAC.APP.371/2007 shall be
referred to as DTC. It may be mentioned that Respondents
Sushil Kumar and Narender Singh, driver and owner of the bus
involved in the accident, had not contested the proceedings.
They preferred to be proceeded ex parte. They even did not
contest the proceedings before the Claims Tribunal.
4. According to the case set up by the Claimant on 23.05.1990, he
was driving his two-wheeler scooter no.DNE-4463. He was
proceeding from Vasant Vihar to R.K. Puram while Kamal was
sitting on the pillion seat. The offending bus on route no.511
(being driven by its driver in a rash and negligent manner) came
from opposite direction. It abruptly took a right turn while
being driven at a high speed. The claimant applied breaks and
swerved the scooter to its right, despite that the front left side of
the bus struck against the scooter. The claimant suffered post
traumatic deformity and fracture of left hand fingers. He was
found to have suffered 40% permanent disability in respect of
his left hand. On appreciation of evidence, the Claims Tribunal
opined that the accident was caused by rash and negligent
driving of bus no.DEP-6651 being driven by its driver,
Respondent no.1 before the Claims Tribunal and awarded the
compensation of Rs.4,98,148/-, which is tabulated hereunder:
Sl. Compensation under various heads Awarded by the
Claims
No. Tribunal
1. Loss of Earning Rs.17,380 /-
2. Medical Expenses Rs. 1,56,000/-
3. Conveyance Rs.10,000/-
4. Special Diet Rs.10,000/-
5. Pain, Suffering and Mental Agony Rs.50,000/-
6. Loss of Future Life Amenities and Rs.50,000/-
Pleasure
7. Loss on account of Permanent Disability Rs.2,04,768/-
Total Rs.4,98,148/-
5. It is urged by Mr. J.N. Aggarwal, the learned counsel for the
DTC that although the claimant was aware since the very
beginning that the bus was being run under DTC control, yet
DTC was impleaded as a party only in the year 2001. As per
the information available with the DTC, there was no agreement
between the owner of the offending bus and the DTC. No such
agreement could be available as all the agreements after such a
long time are destroyed. However, a format of the agreement
was placed on record which absolved the DTC of its liability.
Thus, Mr. J.N. Aggarwal, the learned counsel for the DTC
points out that the Claims Tribunal acted illegally in fastening
liability on DTC. It is urged that the compensation of
Rs.2,04,768/- awarded towards permanent disability was not
admissible as the Claims Tribunal ought to have held that there
was no functional disability affecting claimant's earning
capacity as the claimant was dismissed from service not on
account of the injury but because of his continued long absence
as he wanted to earn better in his business. The learned counsel
urges that even if there was liability of the Insurance Company
to pay compensation initially, it was entitled to recover the
compensation paid from the owner of the bus. All the more, no
interest could have been awarded prior to the date of impleading
DTC in the claim petition.
6. The main ground of challenge raised by the claimant is that
claimant's future prospects were not taken into consideration.
The permanent disability in left hand was such that he cannot
carry out any work and his disability ought to have been taken
as 100%. It is further urged that the compensation towards
mental agony suffered by the claimant was not awarded. The
compensation awarded towards the conveyance and loss of
amenities was on the lower side.
7. The finding on negligence is not seriously disputed at the time
of hearing of the appeal. PW1, the Claimant had testified that
the driver of the bus DEP-6651 plying on route no.551 under
DTC came from opposite direction and took a right turn
abruptly on the crossing. The claimant applied break and
swerved the scooter to its right. In spite of this, the front left
side portion of the bus struck against the scooter. As a result of
the impact with the two-wheeler, the claimant suffered post
traumatic deformity and fracture of left hand fingers. The
driver of the offending bus has not come forward to rebut the
claimant's testimony. The negligence is therefore, sufficiently
established. The finding on negligence cannot be faulted.
8. In a petition under Section 166 of the MV Act, the Claim
Tribunal and the Courts award full and fair compensation. In
the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC
343, the Supreme Court observed that the object of awarding
damages is to make good the loss suffered as a result of the
wrong done as far as money can do in a fair, reasonable and
equitable manner. Paras 5 and 6 of the report are extracted
hereunder:-
"5. The provision of the Motor Vehicles Act, 1988 ('the
Act' for short) makes it clear that the award must be just,
which means that compensation should, to the extent
possible, fully and adequately restore the claimant to the
position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair,
reasonable and equitable manner. The court or tribunal
shall have to assess the damages objectively and exclude
from consideration any speculation or fancy, though
some conjecture with reference to the nature of disability
and its consequences, is inevitable. A person is not only
to be compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to
lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to
earn or could have earned. [See C.K. Subramonia Iyer v.
T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi
v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and
Baker v. Willoughby, 1970 AC 467.
6. The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads
(ii)(b), (iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life."
9. I will come to liability a little later. First of all, I will like to go
into the quantum of compensation which has been awarded to
the claimant. It is borne out from the record that in the accident,
the claimant suffered fracture left scapula, head injuries and a
deep wound on his chin. He was immediately removed to
Safdarjung Hospital and was then shifted to Ganga Ram
Hospital. He was discharged from Ganga Ram Hospital on
30.05.1990. As per the discharge summery, the claimant
suffered post traumatic deformity and fracture of left hand
fingers with loss of sensation and loss of movement in the left
hand. On the advice of the Medical Board, LNJP Hospital, the
claimant also received treatment in Germany. The claimant is
stated to have spent a sum of Rs.4,00,000/- on his treatment out
of which, reimbursement of Rs.2,98,000/- was made. The
claimant has not been able to give the details as to which of the
expenses, except his air travel, was not reimbursed by the
department. Rajiv Sharma PW-3 was examined by the
Claimant. He testified that all medical expenses incurred by the
Claimant while taking treatment abroad except
conveyance/travelling expenses were reimbursed. The Claimant
has not disclosed the amount of air travel. I am inclined to hold
that in the year 1990, the air travel to any city in Europe would
cost about Rs.20,000/-.
10. In addition, I will further award a sum of Rs.20,000/- towards
local conveyance and diet during the period of stay in Germany
for the purpose of Claimant's treatment. So, apart from the
reimbursement of the medical expenditure, the claimant is
entitled to a sum of Rs.40,000/- on his air travel, local
conveyance and diet in Germany.
LOSS OF EARNING CAPACITY:
11. In Raj Kumar (supra), the Supreme Court brought out the
difference between permanent disability and functional
disability resulting in the loss of earning capacity. It was laid
down that the compensation on account of loss of earning
capacity has to be granted in accordance to the nature of job
undertaken by the victim of a motor accident. Paras 11 and 14
of the report are extracted hereunder:
"11. What requires to be assessed by the Tribunal is
the effect of the permanently disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income,
it has to be quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal
may find that percentage of loss of earning capacity as a
result of the permanent disability, is approximately the
same as the percentage of permanent disability in which
case, of course, the Tribunal will adopt the said
percentage for determination of compensation (see for
example, the decisions of this Court in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. 2010 (10) SCC
254 and Yadava Kumar v. D.M., National Insurance Co.
Ltd. 2010 (10) SCC 341.
x x x x x x x
14.For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred percent, if he
is neither able to drive or do carpentry. On the other
hand, if the claimant was a clerk in government service,
the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as
he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there may
not be any need to award any compensation under the
head of 'loss of future earnings', if the claimant continues
in government service, though he may be awarded
compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not found
suitable for discharging the duties attached to the post or
job which he was earlier holding, on account of his
disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in which
case there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity."
12. The question that arises for consideration is whether the
claimant has suffered any functional disability so as to affect his
earning capacity.
LOSS OF EARNING CAPACITY
13. First of all I shall refer to the testimony of the Claimant who
examined himself as PW-1. It is not in dispute that the
Claimant suffered injuries. He recovered from the injuries in a
period of about 5-6 months but ultimately he suffered
permanent disability in respect of post traumatic deformity and
fracture of left hand and fingers. As disclosed by PW-3 Rajiv
Sharma, UDC from the Claimant's employer that the Claimant
had jointed his duties finally on 04.01.1997 after several
extension of leave including treatment abroad.
14. The Claimant tried to build up a case that he left the job because
of the permanent disability and had to start his business. The
record however speaks to the contrary. The Claimant continued
to work with Central Water Commission as Deputy Director till
November, 1996. The Claimant's salary was also increased and
he got usual increments. PW-3 testified that the Claimant was
removed from service because of his misconduct as a vigilance
inquiry was held for taking unauthorised leave. Thus, it was
sufficiently proved that the Claimant's services were terminated
because of his long unauthorised absence.
15. On this aspect, the Claimant deposed that after leaving his job
he was assisting his brother in business of steel and cement. He
further deposed that w.e.f. July, 2002 he had started his own
business and treating in cement in Manesar. Thus, from
continued employment with Central Water Commission for six
long years after the accident his removal from the service
because of his continued long unauthorised absence it is clear
that the Claimant did not suffer any functional disability.
Moreover, as far as his own earning, he initially assisted his
brother in the business who was paying Rs.3800/- per month
and then he started his own business and dealing in cement.
Thus, the Claimant really did not suffer any functional
disability. He was, therefore, not entitled to any compensation
towards loss of earning capacity.
16. At the same time, the Claimant ought to have been awarded
compensation for loss of amenities, expectations of life and
deformity. Taking into consideration the nature of disability
suffered and that the Claimant ultimately started his own
business, further that the accident took place in the year 1990, I
will award him a sum of Rs.1,25,000/- towards loss of
amenities, loss of expectations and disfigurement.
LOSS OF LEAVE
17. The Claimant met with an accident on 23.05.1990. He
underwent treatment in Safdarjung Hospital and Ganga Ram
Hospital. He consulted a number of Orthopaedic Surgeons and
Neurologists available in the county and then received treatment
at Hannover in Germany. The Claimant remained on leave for
6½ months. As per PW-3 Rajiv Sharma, the Claimant was
getting a salary of Rs.4740/- per month at the time of accident.
I will award him a sum of Rs.30,810/- (as against Rs.17,380/-
awarded by the Claims Tribunal) for six months and 15 days for
the period of his leave irrespective of the fact whether the leave
was without pay or with pay as the Claimant cannot lose the
benefit of his paid leaves also.
18. The Claimant suffered serious injuries and must have needed an
Attendant atleast for one month immediately after the accident
and then intermittently. Even if gratuitous services were
rendered by some or the other family members, the Claimant
cannot be deprived of its benefit on the gain of the tortfeasor. I
will therefore, award him a lumpsum compensation of
Rs.10,000/- towards Attendant charges/gratuitous services
rendered by the family members.
19. In view of the long treatment, the compensation towards
conveyance and special diet is raised from Rs.10,000/- each to
Rs.15,000/- each.
20. The compensation awarded thus comes as under:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal (Rs.)
(Rs.)
1. Loss of Earning 17,380 /- 30,810/-
2. Medical Expenses 1,56,000/- 1,56,000/-
3. Conveyance 10,000/- 15,000/-
4. Special Diet 10,000/- 15,000/-
5. Pain, Suffering and Mental 50,000/- 50,000/-
Agony
6. Loss of Future Life 50,000/- 1,25,000/-
Amenities and Pleasure
7. Loss on account of 2,04,768/- NIL
Permanent Disability
8. Air Travel and Local -- 30,000/-
conveyance in Germany
9. Attendant charges -- 10,000/-
Total Rs.4,98,148/- Rs.4,31,810/-
21. The overall compensation awarded by the Claims Tribunal
therefore, seems to be just and reasonable. It does not call for
any interference.
LIABILITY
22. Initially, DTC was not impleaded as one of the Respondents in
the Claim Petition filed before the Claims Tribunal. It was only
in the year 2001 that the DTC was impleaded. In the written
statement filed by the DTC a case was set up that the DTC was
neither the owner nor the hirer of the vehicle. The vehicle was
not being run under supervision and control of the DTC, rather
the vehicle was run under 'Earn and Keep Scheme'. Although,
the exact agreement between the owner of the bus and DTC was
not produced, but a format Ex.RW-1/B was proved to show that
the similar agreement was being entered into between the
owners of the buses and the DTC. DTC has proved the format
of the Agreement which used to be entered into between the
persons providing buses as mark 'B'.
23. It was urged by the learned counsel for the DTC that the clauses
5 to 8 of the Agreement were struck out in respect of the
Agreement which were entered during the time the accident
occurred. Even if, it is assumed that Clauses 5 to 8, which
stated about the payment by the DTC to owner of the buses
under the kilometer scheme, it is not in dispute that the bus in
question was still being run under the control of the DTC.
24. As per Clause 3(b) of the Agreement Ex.RW-1/B, the owner
was to make the bus available for inspection in accordance with
direction of the Chairman of the DTC. The owner of the bus
i.e. Narinder Singh (Respondent no.2 in MAC APP.233/2007
and MAC APP.371/2007) remained ex-parte before the Claims
Tribunal. He has also not come forward to contest the appeal.
25. In the absence of any opposition by the owner of the bus, it
shall have to be taken to be proved that the bus was being run
by owner Narinder Singh Respondent no.2.
26. At this juncture, it will be appropriate to refer to some of the
clauses of the Performa Agreement. Clause 3(a) required the
owner of the bus to keep the vehicle insured whereas Clause 7
stated that the civil or criminal liability under tort was to be
made by the owner. Clauses 3(a), 3(b), 7 and 19 of the
Agreement are extracted hereunder:-
"3.(a) The party of the first part shall keep the bus
particulars of which are given in Clause 1 of the
agreement roadworthy in terms of Chapter-V of
the Delhi Motor Vehicle Rules 1940 and carry out
all necessary repairs at his own cost and within
time allowed by Chairman-cum-M.D. DTC or any
other officer authorised by him by a special or
general order and shall also keep it duly insured
covering third party's risk.
3(b) The party of the first party shall make the bus
available for inspection in accordance with the
direction of Chairman-cum-M.D., DTC or any
other officer authorised by him by a special or
general order not only at the time of its
engagement under DTC but also as and when
required.
x x x x x x x x x x
7. The driver on the bus shall be proved by the
party of the first party at his cost and he (driver)
shall possess a valid heavy vehicle with P.S.V.
endorsement as per Motor Vehicles Act, 1939.
Delhi Transport Corporation shall not be liable
for any criminal and/or civil liability arising out of
an accident or any action of tort and the party of
the first part shall be responsible for defending the
driver in the criminal and/or Civil Court in respect
of criminal case against the driver and/or claim
cases either before Motor Accident Claim Tribunal
or before any civil court against the owner.
In the event of claim for compensation being
successfully, repudicated by the Insurance
Company in the Court of Law, on the sole ground
that the bus at the time of accident was
overloaded, such cases shall be mutually
considered by the parties.
x x x x x x x x x x
19. (a) The party of the first part shall bear full
reasons responsibility for the payment of
compensation under any law or enactment and
under no circumstances, the party of the second
part shall be responsible for any civil action,
action of tort or any other action arising out of
operation of the bus particulars of which are given
in Clause 1 of the agreement under DTC
operation."
27. Thus, it is evident that it was the obligation of the owner of the
bus to keep the vehicle insured and to satisfy the tortuous civil
liability but, can the DTC absolve itself completely of its
obligation to pay the compensation even initially. If I give a
meaningful interpretation to the various clauses some of which
have been extracted hereinabove, it will be seen that there was
good amount to control not only with regard to the route on
which the bus was to be run but also with regard to safety of the
passengers and the road users. The DTC had also kept with
itself the power to inspect the hirer vehicle and to direct the
owner to rectify the defect. It was also the obligation of the
DTC to ensure that the vehicle is properly insured to meet the
liability under the Motor Vehicles Act. Thus, to my mind, DTC
cannot shirk its liability towards third party, but in view of the
agreement Ex.RW-1/B, since it was the primary responsibility
of the owner to keep the vehicle insured and to satisfy the
liability for any tortuous act, the owner cannot escape the
liability.
28. Thus, there is no escape from the conclusion that DTC and the
other Respondents are jointly and severally liable to pay the
compensation.
29. It is urged by the learned counsel for the DTC that since the
DTC was impleaded only in the year 2001, the DTC cannot be
fasten with the liability to pay any interest prior to the
impleadment of DTC.
30. Since the agreement between DTC and the owner of the bus
was not binding on third parties, the interest for the period prior
to 2001 cannot be denied to the Claimant, but at the same time,
in view of various clauses including the one under which the
vehicle was to be kept insured and it was the obligation of the
owner to satisfy the tortuous liability under the M.V. Act,
although, DTC will be initially liable to pay the compensation
awarded, but will be entitled to recover the same from the
owner of the bus in execution of this very judgment without
having recourse to any independent civil proceedings.
31. By an order dated 11.01.2010, DTC was directed to deposit the
entire awarded compensation. It will be expedient to extract
relevant portions of the orders dated 11.01.2010 and 01.02.2010
hereunder:-
Order dated 11.01.2010
3. The appellant has challenged this award on the
short ground that the vehicle was owned by
Narinder Singh at the time of the accident and
under the agreement between Narinder Singh and
DTC, Narinder Singh was liable to insure the
vehicle and was liable to pay the compensation in
the event of accident.
4. The learned senior counsel for respondent No.1
submits that it was the duty of the DTC to ensure
that the offending vehicle was validly insured at
the time of the accident. Section 146 of the Motor
Vehicles Act provides that no person shall use or
cause or allow any other person to use the motor
vehicle in public place unless it is validly insured
and Section 196 of the Motor Vehicles Act
provides for prosecution for driving uninsured
vehicle. The learned Senior Counsel for
respondent No.1 submits that owner, driver as well
as DTC are liable to be prosecuted and punished
under Section 196 of the Motor Vehicles Act which
provides that whoever drives or causes or allows
the uninsured motor vehicle to be driven is liable
to be punished. DTC has clearly failed in its duty
by permitting the uninsured vehicle to be plied on
road.
5. In the facts and circumstances of this case, the
ex-parte interim order dated 24th April, 2007 is
modified. The appellant is directed to deposit the
entire award amount along with interest with the
Registrar General of this Court within two weeks.
Upon the aforesaid deposit being made, Registrar
General is directed to keep the said amount in
fixed deposit till further order."
Order dated 01.02.2010
"1. The learned counsel for the appellant
submits that agreement between appellant and
respondent No.2 has not been proved before the
Claims Tribunal and therefore the appellant could
not be held liable to pay the award amount.
2. In para 2 (vi), the appellant has admitted having
agreement with respondent No.2 and it has been
specifically pleaded that a copy of the similar
agreement has been filed as Annexure A-6. Para 2
(vi) is reproduced hereunder:-
vi. That DTC had entered into an agreement with
the private owners of the buses to run these buses
on the KM scheme. Since the matter is an old one,
hence the records were destroyed as per the norms
of DTC. A letter-dated 9.10.2000 supports the
contention of DTC and the same is annexed hereto
as ANNEXURE-A-5
However, similar agreement of the appellant with
another private bus owner, which is identical with
the agreement entered into by the appellant (only
the name of the owner of the bus is different) is
placed on record and the same is annexed herein
as ANNEXURE-A-6.?
3. In view of the aforesaid admission of the
appellant, the interim order dated 11th January,
2010 does not call any modification. However it is
made clear that Order dated 11th January, 2010
requiring the appellant to deposit the entire award
amount along with interest as an interim order
subject to final order that will be passed after
hearing all the parties and the award amount be
deposited by the appellant in terms of order dated
11th January, 2010 within three weeks without
prejudice to the grounds raised in this appeal. It is
also made clear that if the appellant finally
succeeds in this appeal, the appellant would be
entitled to recovery rights against respondent
No.2."
32. Thus, liability of DTC to satisfy the award is clearly made out.
At the same time, DTC will be entitled to recover the
compensation paid from Narinder Singh, owner of the bus
no.DEP-6651, Respondent no.2 in the appeals.
33. The amount deposited shall be released to the claimants in
terms of the orders passed by the Claims Tribunal.
34. Both the appeals are disposed of in above terms.
(G.P. MITTAL)
JUDGE
FEBRUARY 19, 2015
pst/vk
