P.K. Jain vs Praveen Choudhary & Ors
2016 Latest Caselaw 2185 Del

$~5 & 6

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of Decision: 18th March, 2016
+      MAC.APP. 971/2006

       P.K. JAIN                                            ..... Appellant
                             Through:      Mr. O.P. Mannie & Mr. Manish
                                           Maini, Adv.
                             versus

       PRAVEEN CHOUDHARY & ORS                ..... Respondents
                   Through: Mr. (appearance not given), Adv.
AND
+   MAC.APP. 141/2008

       PRAVEEN CHOUDHARY &ANR.                ..... Appellant
                   Through: Mr. (appearance not given), Adv.
                   versus

       P.K. JAIN                                          ..... Respondents
                             Through:      Mr. O.P. Mannie & Mr. Manish
                                           Maini, Advs.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                             JUDGMENT

R.K.GAUBA, J (ORAL):

1. P.K. Jain (appellant in MAC Appeal No. 971/2006) was crossing the road, accompanied by his wife, at a place near Jeevan Nursing Home, New Rohtak Road, New Delhi at about 8.20 p.m. on 28.09.1998 when Ambassador car bearing registration No. UP 14 C 9096 (the ambassador car) statedly came at high speed in a rash/negligent manner and hit against

maruti car bearing No. DL 2CG 3570 (maruti car) moving ahead which in turn hit against him (P.K. Jain) causing grievous injuries on his person.

2. It appears that claim petition under Sections 166 read with Section 140 of Motor Vehicles Act, 1988 (MV Act), was preferred on 24.03.1999 registered as claim case No. 260/1999 but the same was dismissed in default on 09.10.2000. On the application under Order 9 Rule 9 of the Code of Civil Procedure, 1908 (CPC), however, the said case was restored and taken up for further proceedings. In the claim case, as initially presented, reference was made to the role of the ambassador car with the allegations that the accident had occurred due to rash/negligent driving of the said vehicle by its driver Praveen Chaudhary, it being a vehicle registered in the name of Executive Engineer, UP State Electricity Board (UPSEB), both of whom were impleaded as first and second respondents (they being now the appellants in connected MAC Appeal No. 141/2008). After the restoration, the claimant amended the petition on 26th August, 2004 wherein the sequence of events leading to the accident was elaborated by reference being made additionally to the involvement of the maruti car.

3. Though in the written statement of Praveen Chaudhary and UPSEB (hereinafter referred to as the contesting respondents) it was claimed that the accident had occurred due to rash/negligent driving of the maruti car and a preliminary objection was taken that the claim petition was defective on account of non-joinder of necessary and proper parties relating to the said other vehicle, the said persons were not impleaded as party at any stage.

4. The tribunal held inquiry and, by judgment dated 10.07.2006, held that the accident had occurred due to negligent driving of the ambassador car by its driver, thus holding the contesting respondents jointly and

severally liable to pay compensation. Before the tribunal, it was proved to its satisfaction that the claimant has suffered grievous injuries to such extent that he had been rendered paraplegic below waist, his disability, permanent in nature, having been assessed to the extent of 100%. It may be added here that there is no challenge to the finding to such effect rendered by the tribunal.

5. The tribunal awarded compensation in the sum of Rs. 13,35,000/- with interest @ 6% per annum from the date of filing of the petition till realization.

6. Before proceeding further, this Court is constrained to observe that though the impugned judgment separately passed by the tribunal indicated that the claim petition had been allowed and compensation was awarded, by a separate short order passed on the same date, (page 14 of the record of MAC Appeal No. 971/2006) it observed that "petition stands dismissed". Apparently, the order was mechanically recorded and signed by the presiding officer of the tribunal, which is not proper.

7. The claimant preferred an appeal in December, 2006 (MAC Appeal No. 971/2006) seeking enhancement. Initially, the grievances were with regard to the calculation of loss of future income, medical expenses and attendant charges. During the hearing on the said appeal, it was, however, submitted that claimant had had to undergo further treatment which have resulted in further medical expenditure. It has been pointed out that in the award granted by the tribunal, there was no provision made for further medical expenses, even upon it being shown that condition of the claimant was so poor that he would be dependent on others throughout his life having been rendered in vegetative state. On the request of the appellant under

Order 41 Rule 27 CPC he was allowed to lead additional evidence. He examined Dr. Harinder Nath Bajaj (AW-3), a specialist in spine surgery, under whose care and treatment the claimant has been since the date of accident. In addition, he examined himself (as AW-1), besides tendering Rajiv Kumar (AW-2), a person claimed to have been engaged as an attendant by him. Despite opportunity, no evidence in rebuttal has been submitted by contesting respondents.

8. The contesting respondents by their separate appeal (MAC Appeal No. 141/2008) have raised the issue that the accident had occurred on account of negligent driving of the maruti car by its driver. It is submitted that the involvement of the maruti car was initially concealed from the facts brought before the Court and it was only when the entire fact-sequence of events was brought to light by the contesting respondents that the claimant was constrained to add to the pleadings. Additionally, the contesting respondents also questioned the finding recorded by the tribunal with regard to the income of the claimant submitting that the witness Udai Sharma (PW-

5), an accountant of MM Goyal Company (a company of chartered accountants) could not have been relied upon in absence of further documentary proof as to the employment of the claimant as accountant with the said company.

9. Having heard both sides at length and having gone through the tribunal's record, as indeed the additional evidence submitted before the court during appeal, this court does not accept the submission of the contesting respondents that there was any negligence on the part of the maruti car driver. The evidence of the claimant, appearing as PW-4 before the tribunal, inter alia, on the strength of his affidavit (Ex.PW-4/A) inspires

confidence insofar as the sequence of events leading to the accident is concerned. The very fact that the Ambassador car was behind the maruti car and had struck against it from rear side causing the said car to hit against the claimant shows reckless and uncontrollable speed at which it was moving on the road which is generally a very densely populated area that normally witnesses heavy amount of traffic with pedestrians moving all over. Though, during his cross-examination, the claimant conceded that there was no zebra crossing or traffic signal at the specific place, the fact remains that on the stretch of the road where the accident occurred, there is no restriction in the form of any barricade on the central verge to block the crossing of the pedestrians from one side to the other. One does not even know if any zebra crossing existed in the vicinity. At least none has been pointed out by the contesting respondents by any evidence. In these facts and circumstances, the finding about the negligence on the part of the ambassador car driver does not deserve to be interfered with.

10. The learned tribunal has given sound reasons to accept the evidence of PW-5 about the income of the claimant. The said chartered accountant company had issued a certificate (Ex.PW-5/1) with regard to the avocation in which the claimant was engaged and the terms thereof. This Court is not inclined to tinker with the view taken by the tribunal in such regard.

11. There is merit in the contention of the claimant that the loss of future income could not have been calculated on the multiplier of 10. The tribunal found, on the basis of evidence, that the claimant was 50 years old when he was rendered disabled to the extent of 100%. It has been pointed out that while deposing as PW-4 on 24.05.2004 he gave his own age as 62 years. This would mean he would have been 56 years old when the accident

had occurred. Thus, the multiplier of 9 would have been the appropriate one to calculate the loss of income. In these circumstances, the compensation on that account is calculated as (Rs. 5,000 X 12 X 9) Rs. 5,40,000/- This would mean the compensation awarded under this head to the claimant has to be reduced by Rs. 60,000/-.

12. On medical expenses, the tribunal observed that though the claimant had submitted certain bills, the total amount reflected by them was Rs. 2 lakhs. The tribunal awarded Rs. 2 lakhs towards hospitalization and, thus, granted Rs. 4 lakhs on account of medical expenses. The claimant by appeal submits that the bills presented by him were not properly calculated and that the total compensation comes to Rs. 7,71,559/-. Since the tribunal had undertaken the exercise of computing the bills as presented, this Court does not accept the submission to above effect.

13. But at the same time, it cannot be ignored that the needs of the claimant for further treatment have resulted in additional expenditure. Indeed, some provision should have been made by the tribunal for future treatment. AW-3 during the additional evidence before this Court has proved that the appellant would require treatment throughout his remaining life. In his assessment, the appellant is immobile, has bed sores, suffers from recurrent infection in urine, is always in pain and bed ridden unless assisted, his joints now giving away. The claimant has proved through his own evidence, further medical expenditure in the sum of Rs. 12,72,880.93. Having regard to the condition described by his doctor, in the opinion of this Court, a total additional compensation in the sum of Rs. 15 lakhs would be just and proper, which would include not only the further expenditure

incurred after the award by the tribunal but also provide the corpus of funds for further treatment in future.

14. The tribunal had awarded Rs.1,35,000/- towards attendant charges, conveyance and special diet. This includes Rs. 50,000/- awarded as lumpsum amount towards attendant charges. The grievance of the claimant in that it is not sufficient as attendant engaged (AW-2) has been charging Rs.10,000/- per month. The claimant prays for calculation on that basis.

15. This Court does not accept the evidence of AW-2 for the simple reason that there is no special qualification for which the said attendant demands such wages. In the opinion of this Court, it will be proper to work out the attendant charges on the benchmark of minimum wages payable at the time when the accident took place, which would be Rs. 1937 per month. This can be calculated again with the help of the multiplier of 9. Thus, the attendant charges that need to be provided for in the sum of (1937 X 12 X 9) Rs.2,09,196/- rounded off to Rs. 2,10,000/-. Since the tribunal awarded only Rs. 50,000/- under this head, the award needs to be enhanced by further amount of Rs. 1,60,000/-.

16. The net result is that the total compensation payable to the claimant has to be increased by Rs. (15,00,000 + 1,60,000 - 60,000) Rs. 16,00,000/-. Ordered accordingly.

17. The tribunal's record shows that the claim petition was filed in 1999 but was not prosecuted diligently. As noted earlier, the petition filed was initially suffered to be dismissed in default and, after restoration, the claimant took his own time in adducing evidence. It is noted that the appeal seeking enhancement was filed in 2006 and the claimant took his own time in pursuing it, so much so that the additional evidence was adduced after a

gap of 9 years. In these facts and circumstances, no case is made out for any increase in the rate of interest.

18. In the given facts and circumstances, while award of compensation is being increased by Rs. 16,00,000/-, it is directed that the claimant will be entitled to interest there against at the rate levied by the tribunal from the date of this judgment till realization.

19. The contesting respondents (appellant in MAC Appeal NO. 141/2008) are held liable to pay compensation as well jointly and severally.

20. By order dated 07.08.2008 on the file of MAC Appeal No. 141/2008, it was noted that the compensation awarded by the tribunal had been deposited with the Registrar General of this Court. 50% of the said deposit was allowed to be released to the claimant, the balance retained in fixed deposit receipt initially for a period of two years with provision for renewal. The Registrar General shall now take steps for release of the balance with accrued interest to the claimant. The parties held liable to pay compensation shall be duty bound to deposit the balance in terms of the increased award with interest, as ordered, with the tribunal within 30 days of his judgment, whereupon the same shall be released to the claimant.

21. The statutory amount, if deposited, shall be refunded to the concerned party.

22. Both appeals are disposed of in above terms.

R.K. GAUBA (JUDGE) MARCH 18, 2016 nk