Dixit Kumar & Anr vs Om Prakash Goel
2016 Latest Caselaw 548 Del

$~7

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 25th January, 2016


+      MAC.APP. 358/2011

       DIXIT KUMAR & ANR                                   ..... Appellants
                          Through:       Mr. Shiv Sehgal, Proxy Adv.
                          versus

       OM PRAKASH GOEL                                   ..... Respondent
                          Through:       Mr. V.P. Katiyar & Mr. Neeraj
                                         Pandey, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. The appeal at hand was presented under Section 173 of the Motor Vehicles Act, 1988 (MV Act) to question the correctness, justification and propriety of the proceedings and of the judgment passed at the conclusion of the hearing on 18.12.2010 by the motor accident claims tribunal (the tribunal) on the claim petition under Sections 166 and 140 MV Act presented on 25.02.2004, registered as MAC case No. 1084/2004 (old No. 543/2003), whereby compensation in the sum of ` 15,51,030/- inclusive of interim award of ` 25,000/- was granted with interest @ 7.5 % per annum from the date of the petition till realisation. The impugned judgment and award passed by the tribunal directed the appellants herein, jointly and severally, to pay the said compensation to

the respondent (the claimant). It may be mentioned here that the first appellant was impleaded in the said proceedings as the driver of maruti car bearing registration no. DL 3CF 1400 which statedly was involved in a collision against scooter No. DL 8SF 9713 (the scooter) at about 7.30 a.m. on 7.8.2002 at the junction of roads from Tri Nagar and Road No. 37, Keshav Puram, New Delhi near Tyagi Public school. The claimant had stated in the petition that he was sitting on the pillion seat of the scooter which was driven by his son Vikas Goyal (through whom the petition was filed) and that the aforesaid car was driven rashly/negligently by the second appellant herein. The car (hereinafter the offending vehicle) concededly was owned by the second appellant herein. It may be added that the first appellant is the son of the second appellant.

2. Before coming to the issues raised in this appeal, it is necessary to take note of certain further background facts.

3. A claim petition under Section 166 read with Section 140 MV Act for and on behalf of the claimant, relating to the same occurrence and injuries, was filed before the tribunal on 24.3.2003, inter alia, pleading that he had suffered permanent disability in the aforesaid motor vehicular accident and, thus, was also entitled to interim compensation on the principle of no fault liability. Upon notice, the appellants herein, impleaded as the first and second respondent, appeared in said case and filed written statement on 9.9.2003. It is clear from the said pleadings, as also the pleadings of the case from which the present appeal arises, that the offending vehicle was not insured against third party risk for the period in question. The said petition, filed on 24.03.2003 was registered

as claim case No. 543/2003. For consideration of the prayer for interim compensation, the presiding judge of the tribunal called the claimant and proceeded to examine him on oath on 19.2.2004 when it was revealed that he was suffering from mental disability. The learned tribunal deferred the matter and passed an order later holding that the petition had been filed unauthorisedly in the name of the claimant even though he was deprived of the mental capability to understand the documents on which his signatures had been taken. The petition was held to be improperly filed and, thus, not maintainable.

4. In the wake of the aforesaid result of the first claim case, a fresh petition (from which present appeal arises) was filed on 25.2.2004 stating at the outset that since the claimant had been rendered permanently mentally retarded and paralysed to the extent of 50%, he was in no position to pursue his lawful interests. The fresh petition was presented by his son Vikas Goel, described as next friend, with the prayer that he may be permitted to pursue and prosecute the claim petition in terms of order 32 of Code of Civil Procedure, 1908 (CPC). The learned tribunal registered the fresh claim petition as claim case and by order dated 03.03.2004 directed a medical board to be constituted by the medical superintendent of Hindu Rao Hospital for examining the claimant and making assessment as to the nature and extent of mental disorder, if any, suffered by him. Pursuant to the said directions, which had to be reiterated, the claimant was examined and a report eventually submitted by the said Hospital.

5. After considering the above-said report, the learned tribunal by order dated 21.9.2004 allowed the prayer under Order 32 CPC

permitting Vikas Goel, son of the claimant, to prosecute the claim petition on his behalf, albeit referring to him as guardian ad litem, rather than as next friend.

6. Notice on the fresh claim case to the opposite party (appellants herein) was issued by the tribunal in the wake of the above noted proceedings. The appellants appeared before the tribunal and submitted the written statement on 17.11.2004. The pleadings in the said written statement, upon perusal, make it clear that there was no challenge made to the claim in the petition that the claimant was suffering from mental disability and, thus, was constrained to prosecute the claim petition through his next friend/son Vikas Goel. In fact, the pleadings to this effect, were not denied even remotely. The ground of contest in the said written statement mainly was that there had been no collision between the scooter of Vikas Goel (on which the claimant was travelling as pillion rider) and the car of the second appellant. It was stated that the second appellant was driving the car at the relevant point of time and had gone to Tyagi Public School (in the vicinity of which the accident took place), to drop his two children when it was noticed that the scooter of Vikas Goel had slipped on the road in a pool of water close to a construction site of Metro Rail Project and that he had only sent his son (the first appellant) across to help the claimant, an elderly person, out of the distress, but the claimant had caught hold of his son and started accusing him of having caused the accident. The grounds on which the compensation was claimed, were also challenged by pleadings in the written statement.

7. It is pointed out by the counsel for the appellants that, midway the inquiry, sometime in 2007, he had moved two applications one under Section 153 CPC questioning the correctness of the order dated 21.9.2004 passed under Order 32 CPC and another seeking fresh opportunity for cross-examination of the witnesses of the claimant who by then had been examined. Both the said applications were dismissed by order dated 05.02.2007, first mainly on the ground of laches and second on the ground that opportunity granted for cross-examination of the witnesses had not been availed of and there was no reason why the said opportunity required to be re-opened. The tribunal observed that the said applications were an afterthought and a devise to cause further delay.

8. On the conclusion of the proceedings, the award to the effect noted above was passed, which is under challenge before this Court.

9. In appeal, the appellants have argued that the proceedings in the second claim petition in which the impugned order was passed, were improperly instituted and were hit by the principle of res judicata in view of the first claim petition. I am afraid the submission is frivolous and only needs to be mentioned to be rejected. There was no effective decision on any of the issues arising. The first petition was rejected, as already noted, but only on the ground that the claim petition had been improperly instituted in the name of the claimant who was not a mentally sound person. In these circumstances, it cannot be said that the issues arising directly or substantially in the first claim petition had been effectually determined so as to be treated as issues "heard and finally decided" and to bring in the rule of res judicata.

10. The appellants submitted that Vikas Goel (PW-1), son of the claimant could not have been appointed as his next friend under Order 32 CPC, without issuing notice to them. The claimant's counsel, on the other hand, relied on the judgment of Patna High Court in Smt.Godawari Devi vs. Smt. Radha Pyari Devi & Ors. AIR 1985 Patna 366 to the effect that inquiry about unsoundness of mind of a party is a matter between the court and the party in question, and, therefore, the defendant has no locus standi to challenge or question the findings recorded on the subject.

11. It has to be borne in mind that the proceedings under Section 166 read with Section 140 MV Act before a claims tribunal are not proceedings before a civil court nor, for that matter, bound by the technicalities of the Code of Civil Procedure, 1908. Without going into the controversy as to whether a notice was necessary before the issue of unsoundness of mind could be finally determined, in the present case, it may be said that having regard to the pleadings submitted by the appellants in the second petition, they had forfeited any right to raise the contention to the above effect. The petition clearly pleaded that the person on whose behalf Vikas Goel was filing the petition, as his next friend, was suffering from unsound state of mind. This pleading was not denied or traversed by any counter pleadings in the written statement, and, thus the case of the claimant to that effect stood admitted.

12. In the face of admission, the objections raised later are nothing but technicalities which cannot be allowed to cause further delay in the just compensation coming in the hands of the person injured.

13. The appellant has again raised the issue of denial of involvement of his car in the collision. The evidence of Vikas Goel (PW-1) on the strength of his affidavit (Ex.PW-1/A) and additional affidavits (Ex.PW- 1/B to Ex.PW-1/D) on which he was cross-examined were duly considered by the tribunal. Similarly, the affidavits (Ex.R1W1/A and B) of the first appellant have been subjected to scrutiny by the tribunal in the impugned judgment. The tribunal returned a finding that the accident had occurred indeed on the collision between the scooter and the offending vehicle due to rash/negligent driving of the latter by the first appellant. The reasoning assigned by the tribunal is set out in (paras 6 to 10) the impugned judgment in the following manner:-

"6. PWl- Vikas Goel has stated in his affidavit that on 07.08.02 at about7:30am deponent alongwith petitioner was going on two wheeler scooter from Tri Nagar and when reached at road no.37, near Tyagi Public School, a maruti car no. DL-3C-F-1400 being driven by R1 in a very high speed, rashly & negligently, came from behind, overtook the scooter of the deponent from wrong side i.e. from the left side of the scooter and hit the scooter from the left back as a result of which scooter fell down and the petitioner had sustained head injury. He has further stated that R1 stopped the car, came out from it and after seeing the public persons, stepped into the car and fled away. He has further stated that deponent removed the petitioner to Sunder Lai hospital in a TSR where the petitioner was examined vide MLC no.4472on 07.08.02 and police came and recorded the statement of deponent. PWl has further stated that FIR bearing no.284/02 in PS Keshav Puram was registered on his statement. He was cross- examined by counsel for Rl.

7. Certified copy of criminal record filed in which Rl has been chargesheeted. It is also found that FIR was registered on the statement of PWl Vikas Goel which shows that he was with the petitioner injured. The mechanical inspection of scooter bearing no. DL-BSF-9713, on which petitioner and

PWl Vikas Goel were going, has fresh damages. During mechanical inspection, left side body of the scooter was found scratched. It shows that when driver of the offending vehicle tried to overtake the scooter from wrong side i.e. from left side of the road, hit the scooter from left back and that is why fresh damages were found there on the scooter. No reason has been given by Rl & R2 that why PWl would implicate them in a false case. If Rl had gone to the petitioner for help when scooter of the petitioner had slipped as claimed by Rl, then why petitioner and his son PWl would implicate him. No reason has been shown by Rl & R2 to implicate their maruti car in this accident.

8. I have gone through the entire cross-examination of PWl Vikas Goel relating to negligence part of the driver of the offending vehicle. Nothing has come during cross- examination from which it can be said that the testimony of PWl is not trustworthy. Photocopy of FIR proves the fact that criminal case was registered against R1 u/s 279/338 IRC and section 3/181 of Motor Vehicle Act in PS Keshav Puram, Delhi. Vikas Goel has stated that petitioner was examined vide MLC no.4472 in Sunder Lai hospital. PW2 Dr. Rama Kant Gupta from Hindu Rao Hospital has proved the disability certificate Ex-PW2/A.

9. R-1 filed his affidavit in which he has stated that on 07.08.02when he stopped his car before Tyagi Public School, suddenly a scooter bearing no. DL-SF-9713 coming from opposite direction and on the other side of road slipped on the road as plenty of water was there and construction work of Metro Rail Project was going on and on seeing the aforesaid scene of falling of his scooter on the road, R2 sent R1 to help petitioner and petitioner caught hold the R1 and started shouting that R1 has caused the aforesaid slip of the scooter of the petitioner and on seeing the aforesaid malafide intention of the petitioner, R1 came back to the car.

10. In para 1 of his affidavit, R1 has stated that the alleged accident is neither in the knowledge of answering respondent nor happened. During cross-examination he has also admitted that the alleged accident had neither taken place in his presence nor he has the knowledge of the same. It shows that R1 Dixit Kumar has made false and contradictory statement in

his affidavit. He has also admitted during cross-examination that he was present when the accident has taken place. It again shows that he has filed a false affidavit regarding the fact that accident was not taken place in his presence or the same is not in his knowledge. Therefore, I do not agree with the submissions of counsel for R1 & R2 that petitioner had sustained injuries due to slip of his scooter on which he was going since the testimony of R1 Dixit Kumar is not trustworthy".

14. On careful perusal of the evidence on record, this Court finds that the tribunal has taken correct note of the evidence and appreciated it properly for sound reasons. This court does not find any error in the view taken by the tribunal. There is, thus, no cause shown for the findings affirming the involvement of the car, and the fault of the first appellant, to be disturbed.

15. The learned tribunal found, on the basis of evidence, that the claimant was 54 years old on 7.8.2002, when he suffered injuries in the motor vehicular accident. It disbelieved the claim about his status in life or nature of avocation or level of income. It chose to proceed on the basis of assumption that he would have been earning minimum wages @ ` 2,680/- per month as prevalent for unskilled workers during the relevant period. It found, on the basis of disability certificate (Ex.P2/K), proved by Dr. Rama Kant (PW-2), that the appellant had suffered permanent disability to the extent of 50% but then went on to conclude that since he had been rendered paralysed, he would not be able to conduct any business in future and, thus, his functional disability was to be treated as 100 %. On the basis of these conclusions, and the proof regarding the medical treatment and expenditure incurred on engaging attendant, the sum of ` 15,51,030/- was found to be just

compensation payable to him, its break-up having been shown (at page no.10 of the impugned judgment) in the following manner:-

"1. Compensation for pain & sufferings : 1,50,000/-

       2. Compensation for expenses incurred :             2,67,270/
            medical treatment (rounded off)
       3. Compensation for special diet :                   10,000/-
      4. Compensation for conveyance charges :              30,000/-
      5. Compensation for attendant charges so :           3,40,000/-
          far and for future                   (1,72,000 + 1,68,000)

    6. Compensation for loss of income so far & :        3,53,760/-
      earning capacity in future
   7. Compensation for loss of enjoyment of :           2,00,000/-
      amenities of life & general damages
  8. Compensation on account of inconvenience :         1,50,000/-

hardship, discomfort, disappointment, frustration and mental stress in life

9. Loss of recurring inevitable expenses in future: 50,000/-

Total : 15,51,030/-

16. The tribunal has awarded compensation for loss of income till the date of the petition and on account of loss of earning capacity in future by treating the case of the claimant as one where he had suffered functional disability to the extent of 100%; this, on the basis of evidence of PW-2 affirming that he had found him physically disabled to the extent of 50%, and the evidence of PW-1 that the claimant had become totally paralysed and would not be able to conduct any business in future. This court agrees with the submissions of the appellants that the findings of the tribunal to such effect are not borne out from the record. PW-2, the medical authority, who had examined the claimant from the stand-point of disability, had found him handicapped only to the extent of 50% in relation to the whole body. Mere say of PW-1, that the

claimant had become paralytic on one side rendering him in vegetative state, to the extent of 100% in relation to the whole body is not supported by any medical opinion. In these circumstances, the calculation of compensation for loss of income and future earning capacity on the assumption of 100 % disability is not correct.

17. For the same reasons, the grant of attendant charges for the period of treatment and future would not be proper. The evidence shows that the claimant had remained under treatment for about two months. Aside from the loss of earnings for the period of two months, i.e. (` 2,680 X 2) ` 5,360/-, the loss of earning capacity in future needs to be worked out by factoring in the 50% disability, and, thus, computed at (` 1,340 X 12 X 11) ` 1,76,880/-. For the above noted reasons, the attendant charges are also worked out at ` 4,000/- only.

18. Since the compensation on account of medical treatment was granted on the basis of actual expenditure at ` 2,67,270/-, no fault can be found with the award to that extent. It appears that the tribunal invented more than necessary heads of non-pecuniary damages, as compensation (` 2,00,000/-) on account of loss of enjoyment of amenities of life and general damages having been awarded on one hand, another sum (` 1,50,000/-) has been added as compensation on account of inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, besides compensation (`1,50,000/-) for pain and sufferings and another sum (` 50,000/-) on account of recurring inevitable expenses in future.

19. In view of the facts and circumstances brought home, having regard to the age and nature of injuries sustained, compensation in the

sum of ` 1,50,000/- on account of pain and suffering is upheld. Further, the compensation on the other grounds is awarded in the composite sum of ` 1,50,000/- under the non-pecuniary heads of compensation for loss of amenities of life. The awards of compensation of ` 10,000/- towards special diet and ` 30,000/- on account of conveyance are sustained.

20. The compensation found just and proper by this court may be summarised as under:-

(1) Compensation for loss of income and ` 1,76, 880/-

future earning capacity

(2) Compensation for expenses incurred on ` 2,67,270/-

medical treatment

(3) Compensation for pain and suffering ` 1,50,000/-

(4) Compensation for loss of enjoyment of ` 1,50,000/-

amenities of life

(5) Compensation for conveyance charges ` 30,000/-

       (6) Compensation for special diet                 Rs. 10,000/-

       (7) Compensation for attendant charges            ` 4,000/-

          Total                                          ` 7,88,150/-

21.    For the foregoing reasons, the appeal is partly allowed.       The

compensation payable by the appellants to the respondent-claimant is reduced to Rs. 7,90,000/-. Of course, it shall carry interest @ 7.5 % per annum as awarded by the tribunal in the impugned judgment, payable w.e.f. 25.5.2004 till realisation.

22. The learned counsel on both sides submit that an amount of ` 2,75,000/- has been paid so far to the appellants. The said amount shall be adjusted. The appellants are directed to deposit the balance, with upto date interest, in the tribunal within 30 days of this order, failing which the interest shall stand enhanced to 9% per annum from the last day of the period granted for the amount to be deposited in terms of these directions, till realisation.

23. The respondent shall have the liberty to take out appropriate execution proceedings, in the event of default on the part of the appellants, to enforce the modified award.

24. The appeal is disposed of in the above terms.

R.K. GAUBA (JUDGE) JANUARY 25, 2016 nk