IN THE HIGH COURT OF DELHI AT NEW DELHI. SUBJECT : Motor Vehicles Act, MAC App. No.528/2008 and CM No.14983/2008

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Motor Vehicles Act, 1988 MAC App. No.528/2008 and CM No.14983/2008 Judgment reserved on: 23rd October, 2008 Judgment delivered on: 17th November, 2008 U.P.S.R.T.C. Through its Regional Manager Gaziabad, U.P. Through:.Appellant Ms.Garima Prasad with Ms.Suchita Sharma and Ms.Neha Goyal, Advocates. Versus 1.Rajender Singh S/o Sh.Tej Singh, R/o A-87, Tajpur Road, Mohan Baba Nagar, New Delhi. 2.Jawahar Lal, S/o Sh.Moti Lal, R/o Balkeshwar Lohiya Nagar, Agra, U.P. Respondents. Through: Nemo. V.B.Gupta, J. 1. Present appeal has been filed by the appellant under Section 173 of the Motor Vehicles Act, 1988 (for short as Act) against the judgment dated 29th July, 2008 passed by Ms.Sukhvinder Kaur, Judge, MACT, Delhi (for short as Tribunal). 2. The facts in brief of this case are that on 24th July, 1999, respondent No.1, injured along with his brother-in-law was going to his home. When he reached at Okhla More, he was waiting for red light so as to cross the road easily. When he was crossing the road and when it was red light, respondent No.2 who was driving Bus No.UP-80Q-9083 at a high speed, hit him. As a result of which the right leg of the injured was crushed. It is alleged that the accident was caused due to rash and negligence on the part of respondent No.2 and the appellant is the owner of the offending vehicle.

2 3. Vide impugned judgment, the Tribunal awarded a sum of Rs.35,000 as compensation along with 9% per annum from the date of filing of the petition till realization. 4. Aggrieved with the award passed by the Tribunal, the appellant has filed the present appeal. 5. It has been contended by the learned counsel for the appellant that the Tribunal has erred in concluding that the accident had taken place due to negligence of the bus driver when it has been the consistent stand of the bus driver that the bus of the appellant was not involved in the aforesaid accident and the accident was caused by some other vehicle whose number could not be noted down and as such the impugned judgment and award is liable to be set aside on this ground alone. 6. It is also contended that no documents such as hospital records, medical bills, conveyance expenses incurred due to alleged treatment of the respondent no.1 in the Aligarh were placed on record, and therefore, respondent no.1 is not entitled for any reimbursement. The, compensation of Rs. 30,000/- on account of pain and suffering and Rs.5,000/- towards loss of conveyance and special diet awarded by the Tribunal is an arbitrary and excessive. 7. Regarding involvement of the offending vehicle, from the charge sheet filed in case FIR No. 454/99, PS New Friends Colony Ex. PW 1/A, it is clearly established that respondent no.2 has been charge sheeted for the offences of sections 279/338 IPC. 8. Respondent no.1 in his evidence states that; On I was working as Security Guard in SGC security. I along with my brother in law after completion of my duty reached at Okhla Mode at about 5 PM. When I was crossing the road on the red light, one UP roadways bus from Agra Depot came at a high speed, without caring the traffic rules and hit me and crushed my light leg. The driver stopped the bus at some distance. The driver of the bus is present in court today. 9. On the other hand, the driver of the offending vehicle in its written statement stated that he has been falsely implicated by the police and the injured has met with an accident with another vehicle and not with his bus. 10. As per the findings of the Tribunal the testimony of bus driver does not inspire confidence as he admittedly did not lodge any complaint against the police or any higher officers for his fake implication though, he orally testified that he informed his department regarding his fake implication but he could not tell if any action were taken by his department or not. 11. There is nothing on record to show that the claimants had any enmity with the driver of offending vehicle so as to falsely implicate him in this case.

3 12. From the reasoning of the Tribunal, it stands clearly established that as per statement of the bus driver, the injured has met with accident, though with another vehicle and not with his bus. The Tribunal held that as per certified copies of the criminal record it does not find any reason to disbelieve the testimony of the injured and it stands established that injured suffered injury in the accident which took place on 24th July, 1999 due to rash and negligent driving of bus No.UP-80Q-9083 driven by respondent No In Ranu Bala Paul and Ors. v. Bani Chakraborty and Ors., 1999 ACJ 634, the Gauhati High Court has observed as under; In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary enquiry and this is a legislation for the welfare of the society. 14. In N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and others, (1980) 3 SCC 457, the Supreme Court has observed as under; Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation. 15. Thus, under these circumstances this contention of the appellant is rejected. 16. Now coming to the nature of injuries suffered by the injured, the respondent no.1 in his testimony states that; I was taken to Holy Family hospital after the accident, where after getting first aid, I was shifted to Army hospital, being an Ex-service man, where I remained admitted for 1 month. Due to Kargil war, I could not get proper treatment there and thereafter I got treatment at Aligarh. Due to said accident, I am permanent disabled. I tender in evidence certified copies of criminal record which are collectively Ex.PW1/A. I also tender in evidence photocopy of disability certificate which is Ex. PW1/B.

4 17. The Tribunal on this count held that; From the certified copy of MLC of the petitioner which is also collectively Exhibit PW 1/A, it is established that petitioner had sustained fracture in his right femur with degloving injuries on his right thigh. Doctor has opined nature of injuries as grievous. From the MLC, it is also established that the petitioner remained hospitalized from to Testimony of petitioner regarding his treatment at Army hospital and at Aligarh is not supported with any documentary proof. Petitioner also has not placed on record any medical bills to prove the expenses incurred on his treatment. From Exhibit PW 1/B, it is established that the petitioner had sustained disability to the extent of 40%, certificate does not at all suggest that the petitioner had suffered any permanent disability. Furthermore, Exhibit PW 1/B is not a proper disability certificate as it clearly specifies that the same is not valid for medico legal purposes. In the absence of any medical bills, petitioner is not entitled for any reimbursement for the expenses incurred on his treatment. However, considering that the petitioner had suffered fracture of femur bone alongwith degloving injuries on his thigh and disability, I award Rs.30,000/- towards the pain and sufferings and Rs.5,000/- towards the conveyance and special diet. 18. In the instant case, respondent no.1 has not produced any documentary proof regarding his treatment at Aligarh or any medical bills or other documentary proof to prove the expenses incurred on his treatment. He has also failed to prove the disability certificate, to show that he sustained grievous injuries which resulted into a permanent disability to the extent of 40%. The Tribunal has rightly not awarded any compensation on account of disability at all. 19. Though it is true that respondent no.1 has not proved any bills regarding medical expenses but MLC Exhibit PW 1/A, establishes that he remained in hospital from to Since, the injured had sustained fracture in his right femur with degloving injuries on his right thigh and doctor had also opined nature of injuries as grievous, there is strong presumption that he must have taken special diet such as fruits, juices, milk etc. and must have spent some amount on his conveyance for visiting Hospital or Doctors. 20. Thus, the Tribunal rightly awarded compensation of Rs.30,000/- towards pain and sufferings and Rs.5,000/- on account of conveyance and special diet. 21. In a plethora of cases the Honble Apex Court and various High Courts have held that the emphasis of the courts in personal injury and fatal accidents cases should be on awarding substantial, just and fair damages and not mere token amount. In cases of personal injuries and fatal accidents, the general principle is that such sum of compensation should be awarded which puts the injured or the claimants in case of the fatal accidents matter, in the same position as he would have been, if accident had not taken place. 22. In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken in to account. In this regard the Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty,

5 AIR 2003 SC 4172, has classified pecuniary and non- pecuniary damages and has held that: Compensation must be just and it cannot be a bonanza. 23. Further, the Apex Court in R.O. Hattangadi v. Pest Control (India) Pvt. Ltd., AIR 1995 SC 755, laying the principles posited: Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; (ii ) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 24. In view of the above discussion, I do not find any infirmity or illegality in the impugned judgment passed by the Tribunal. 25. Before parting with, I must express my anguish upon the callous attitude of the appellant in filing the present appeal. 26. The provisions as enacted in the Act were brought in the statue book to grant relief to the victim of an accident or his dependant/s by way of compensation. These obviously are beneficial provisions to give relief to a person who has suffered grievous injury or to the dependants of a victim who are left without a bread earner. The object thereof cannot be permitted to be frustrated. 27. The law relating to award of compensation in motor accident cases has developed enormously. It is a good sign. Judicial pronouncements, dealing with the subject, have greatly widened the horizons in this field. New principles have been enunciated to cover various concepts of damages. Enough care has been taken to see that the victim, in case of personal injuries, and the dependents in cases of fatal accidents, do not suffer incalculably due to the accident in question and decisions make an attempt to equate, as for as possible, the misery with the compensation awarded, though money compensation cannot be considered to be in any way equal to the injuries sustained or the life lost. Pecuniary and non-pecuniary damages have to be carefully determined. Need for future case is more, so that the victim or the dependents do not lead a miserable life. [State of Himachal Pradesh v. Shrichand Kishan Hazri (1990) 1 Ac.C.C. 44] 28. In the present case, the Tribunal has awarded amount of compensation after a protracted trial and instead of letting the poor victim of the road accident, live in peace

6 and have little solace, the appellant/corporation is after his blood and has filed the present appeal. 29. It appears that the present appeal has filed by the appellant mechanically, without any legal justification and there being no application of judicious mind and not taking into consideration, the various decisions of the Apex Court and various High Courts. 30. In Oriental Insurance Co. v. Zarifa and others, AIR 1995 J and K 81, the Jammu and Kashmir High Court has observed as under; Before concluding, it is also observed that it is a social welfare legislation under which the compensation is provided by way of Award to the people who sustain bodily injuries or get killed in the vehicular accident. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants. 31. So, under these circumstances the present appeal filed by the appellant/corporation has got no legal force, and is devoid of any merits. The compensation awarded by the Tribunal is just, fair and equitable. 32. Accordingly, the present appeal filed by the appellant is, hereby, dismissed with costs of Rs.10,000/ Appellant is directed to deposit the costs within four weeks from today, by way of a cross cheque in the name of Registrar General of this Court. 34. Copy of this judgment be sent to all the Tribunals for information. 35. List on 19th December, 2008 for compliance. Sd./- November 17, 2008 V.B.GUPTA, J.