Delhi District Court
Rose Smile vs . Sunita Goel & Ors. on 4 April, 2019
Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
Suit no. 192/13
MACT No. 356962/16
Unique Case ID No. DLCT01-001000-2013
1. Sh. Rose Smile Sahota
S/o Sh. Parvez Sahota
R/o 473, Greater Kailash,
Maqsudan, Jalandhar, Punjab
Presently at:-
C-2/F-2, C Block, Dilshad Garden,
Delhi-110095
........Petitioner
VERSUS
1. Sh. Akshat (since deceased)
S/o Sh. Pradeep Goel
Through the legal heir of the deceased
Smt. Sunita Goel, W/o Late Sh. Pradeep Goel,
R/o H. No. 168, Ghee Mandi, Pahar Ganj,
Delhi
...........Respondent No.1
(on behalf of driver ) MACT No.356962/16 & 357080 /16 Page No. 1 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
2. Sh. Sachin Jain S/o Sh. Anil Jain R/o House no. 522, Mantola Gali Pahar Ganj, Delhi.
...........Respondent No.2 (Owner)
3. HDFC ERGO General Insurance Co. Ltd.
Ground Floor, Amba Deep Building, 14, Kasturba Gandhi Marg, New Delhi ...........Respondent No.3 (insurer) And Suit no. 463/13 MACT No. 357080/16 Unique Case ID No. DLCT01-01188-2013
1. Smt. Sunita Goel W/o Late Sh. Pradeep Goel, R/o H. No. 168, Ghee Mandi, Pahar Ganj, Delhi ........Petitioner VERSUS MACT No.356962/16 & 357080 /16 Page No. 2 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
1. Sh. Sachin Jain S/o Sh. Anil Jain R/o House no. 522, Mantola Gali Pahar Ganj, Delhi-110055 ...........Respondent No.1 (Owner)
2. HDFC ERGO General Insurance Co. Ltd.
Ground Floor, Amba Deep Building, 14, Kasturba Gandhi Marg, New Delhi ...........Respondent No.2 (insurer) Date of filing of DAR/petitions in both matters : 27.04.2013 & 07.12.2013 Arguments heard on : 20.03.2019 Date of passing of Award : 04.04.2019 In MACT Suit no. 356962/16:-
Present: Sh. JK Bhola, Advocate, counsel for petitioner Sh. RP Tripati, Advocate, counsel for respondent No. 1 Respondent no. 2 is in person Sh. M Awasti, Advocate, counsel for respondent no.3 MACT No.356962/16 & 357080 /16 Page No. 3 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
In MACT Suit no. 357080/16:-
Present Sh. RP Tripati, Advocate, counsel for petitioner Respondent no. 1 is in person Sh. M Awasti, Advocate, counsel for respondent no.3 FORM- V In MACT No. 356962/2016:
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 26.11.2012
2. Date of intimation of the accident by 27.11.2012 the Investigating Officer to the Claims Tribunal.
3. Date of intimation of the accident by Not mentioned in the Investigating Officer to the the DAR Insurance Company.
4. Date of filing of Report under Section Not mentioned in 173 Cr.P.C. before the Metropolitan the DAR Magistrate.
5. Date of filing of Detailed Accident 27.04.2013 Information Report (DAR) by the Investigating Officer before Claims MACT No.356962/16 & 357080 /16 Page No. 4 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
Tribunal.
6. Date of service of DAR on the 27.04.2013 Insurance Company.
7. Date of service of DAR on the 27.04.2013 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the -
DAR removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated 24.06.2013 Officer by the Insurance Company.
13. Name, address and contact number Sh. M Awasthi, of the Designated Officer of the Advocate Insurance Company. Chember no. 212, Eastern Wing, THC Delhi Mob. No. 9810227224
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company Yes admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any MACT No.356962/16 & 357080 /16 Page No. 5 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
action/direction warranted?
17. Date of response of the claimant(s) to -
the offer of the Insurance Company.
18. Date of the award 04.04.2019
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed Yes to open savings bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank 18.02.2019 account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their Passbook savings bank account near the place produced but of their residence along with the without endorsement, PAN Card and Adhaar endorsement Card?
23. Permanent Residential Address of the As mentioned in Claimant(s) DAR
24. Details of savings bank account(s) of A/c No. the claimant(s) and the address of the 3514001500175228 bank with IFSC Code. Punjab National Bank, Nakodar Road, Jalandhar, Punjab, IFSC PUNB0351200
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26 Whether the claimant(s) were Yes on examined at the time of passing of the 08.03.2019 MACT No.356962/16 & 357080 /16 Page No. 6 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
award to ascertain his/their financial condition?
27. Account number, MICR number, IFSC Central Bank of Code, name and branch of the bank of India the Claims Tribunal in which the award A/c No. amount is to be deposited/transferred 3729848714 (Judge MACT-01 Central) IFSC Code-
CBINo280291 MICR Code:
110016013 A W A R D:-
1. The above two claim suits are the subject matter of this award as both the claim suits have arisen from the same motor vehicular accident which allegedly took place in the intervening night of 25.11.2012 and 26.11.2012 within the jurisdiction of PS Ranjeet Nagar, Delhi.
(i). MACT suit no. 356962/16 has been preferred under Section 166 & 140 of the Motor Vehicle Act. claiming a compensation of ` 21 crore in relation to grievous injury caused to claimant Rose Smile whereas MACT no. 357080/16 has been preferred under section 163A of Motor Vehicles Act claiming a compensation of ` 36,50,000/-.
2. Facts in brief as emerged from the above claim petitions and DAR are that petitioner Rose Smile Sahota MACT No.356962/16 & 357080 /16 Page No. 7 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
came to Delhi from Jallander alongwith his parents to attend marriage ceremony of his friend Rajesh, which was scheduled for 25.11.2012.
(i). It was alleged that after attending the marriage ceremony in the intervening night of 25/26.11.2012 petitioner alongwith Sukchain Singh, Raj Singh Dhillon was returning from Petal Banquet Hall, Naraina to the hotel located at Karol Bagh, where he was staying alongwith his parents and relatives. It was alleged that petitioner was returning to hotel in Maruti Swift car bearing no. DL-4CAA-4781 which was being driven by his friend Akshat. Raj Singh Dhillon was sitting at the front seat whereas petitioner and Sukhchain Singh were sitting in the back seat.
(ii). It was alleged that Akshat was driving the car at very high speed in a rash and negligent manner though all the occupants of the car including petitioner requested Akshat to drive the car slowly and carefully but Akshat did not give any heed to their request. It was alleged that at about 2 am when they reached Naraina Road, near Satya Park, Ranjeet Nagar, New Delhi, Akshat hit the car against road divider and thereafter hit a tree. It was alleged that due to the forceful impact, petitioner who was sitting in the back seat towards left side sustained multiple injuries. The impact was so powerful that the chassis and car gate was damaged very badly and the injured were removed from the car after cutting body of the car by the team of disaster management.
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(iii). It was alleged that initially petitioner was taken to BLK hospital, Pusa Road, New Delhi but he was shifted to Indian Spinal Injury Centre as he had sustained serious spinal injury. In this regard an FIR no. 228/12 was got registered at PS Ranjeet Nagar, Delhi.
(iv). As per disability certificate, petitioner has sustained 100% locomotor permanent disability. In the said accident Akshat sustained fatal injury.
(v) It was alleged that at the time of accident, offending car was being driven by Akshat s/o Ms. Sunita Goyal and registered in the name of respondent no.2 (Sachin Jain) and insured with HDFC ERGO General Insurance Company.
3. Claim petition suit No. 356962/16 was contested by all the respondents by filing their separate reply.
(i). Respondent no. 1 mother of the deceased (Akshat) took a plea that since her son had a valid driving license and car was duly insured, liability if any, insurance company is liable to indemnify the same.
(ii). Registered owner Sachin Jain took a similar plea that since car was duly insured, liability if any, insurance company is liable to indemnify the same.
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(iii). Insurance Company in its reply fairly admitted that the car was duly insured and policy was valid on the date of accident. Insurance company also furnished a legal offer to the sum of ` 7,22,234/- but same was not acceptable to the petitioner.
4. MACT Suit No. 357080/16 was contested by both the respondents.
(i) Respondent no. 1 (Sachin Jain) took a plea that since car was duly insured, liability if any, insurance company is liable to indemnify the same.
(ii). Respondent no.2 took a plea that since the accident had taken place due to the negligence of deceased and fact that deceased was not a third party to the insurance company, Insurance Company is not liable to pay any compensation.
5. On the basis of the pleadings of both the parties in MACT Suit No. 356962/16 vide order dated 22.10.2013 following issues were framed:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 26.11.2012 within the jurisdiction of PS Ranjit Nagar, Delhi due to rash and negligent driving of the vehicle bearing MACT No.356962/16 & 357080 /16 Page No. 10 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
registration No. DL-4CAA-4781 by the driver?
(ii) Whether the petitioner is entitled to any compensation if so, to what amount and from whom?
(iii) Relief.
(i). Vide order dated 07.07.2014 in MACT Suit No. 357080/16 following issues were framed:-
(i) Whether the deceased Sh. Akshat Goyal had died of injuries sustained by him in an accident which took place on 26.11.2012 at 2 A.M within the jurisdiction of PS Ranjit Nagar, New Delhi due to use and involvement of vehicle bearing Regn No.DL-4CAA-4781 owned by respondent no.1?
(ii) Whether the petitioner is entitled to any compensation if so, to what amount and from whom?
(iii) Relief.
6. In order to prove his case, petitioner examined following witnesses:
In MACT Suit No. 356962/16:
PW1 Sh. Rose Smile Sahota, injured PW2 Sh. Jai Prakash Jain, Proprietor of Paras MACT No.356962/16 & 357080 /16 Page No. 11 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
Chemist, proved medical bills PW3 Sh. Balraj Arora, Proprietor of M/S Nitin Medicos, proved medical bills PW4 Sh. Sudhir Kumar Saxena, Sales Manager, M/S Friends Corner (Chemist), proved medical bills PW5 Sh. Rakesh Kumar, Medical Record Officer, Indian Spinal Injuries Centre PW6 Sh. Bhagat Singh, Stenographer, Civil Hospital, Jhallander, Punjab PW7 Dr. Himanshu Sekhar, DAV Institute of Physiotherapy, proved physiotherapy bills PW8 Sh. Sunil Daang, Proprietor of Daang Medicos, proved medical bills PW9 Sh. Vivek Walia, owner-cum-partner, M/S Krishna & Sons, proved medical bills PW10 Sh. Chander Mohan, Billing Clerk, Jai Ganga Medicos, proved medical bills PW11 Sh. Tarseem Lal, Patel Hospital, Jhallander, Punjab PW12 Sh. Neeraj kumar, Lab Technician-Cum-
Record Keeper, Dhingra Clinical Laboratory, proved medical bills PW13 Sh. Sunil Kumar, Salesmen, Modern Surgical House, proved medical bills PW14 Dr. Hardev Singh, Medical officer, Civil Hospital Jhallander, proved disability MACT No.356962/16 & 357080 /16 Page No. 12 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
certificate PW15 Dr. Ved Pal Yadav, Asst. Orthopedic, proved disability certificate
(i) In rebuttal, respondent no.1 examined herself as R1W1, no evidence has been lead by the respondent no. 2 and 3.
In MACT Suit No. 357080/16:
PW1 Smt. Sunita Goyal, petitioner
PW2 Sh. Naresh Kumar employer of the
deceased
PW3 ASI Raj Kumar IO
PW4 Sh. Vijay Kumar, Eye witness
(i) In rebuttal, no evidence has been lead by
the respondents.
7. On completion of evidence led by both the parties, statement of petitioners in MACT Suit no. 356962/16 was recorded on 08.03.2019 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 7, 2018, wherein petitioner submitted that his monthly expenses is between ` 1,00,000/- to ` 1,25,000/-.
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(i). In MACT suit no. 357080/16 statement of petitioner was recorded on 19.02.2018 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 15, 2017, wherein petitioner submitted that her monthly expenses is ` 20,000/- to ` 25,000/-.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. My issue-wise findings are as under:-
Issue No. 1 in both the matters:
FINDING:-
10. Though no serious contention has been raised by the counsel for respondents on the aspect of rashness and negligence of respondent no.1, yet I deem it appropriate to deal with this aspect also.
(i) In this regard testimony of PW1 Rose Smile Sahota in MACT Suit No. 356962/16 and PW4 Vijay Kumar in MACT Suit No. 357080/16 are relevant.
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(ii). PW 1 Rose Smile Sahota in his examination-in-chief reiterated his version that accident had taken place due to the rash and negligent driving of Akshat as he was driving the car at very high speed. Though he alongwith other occupants of the car requested him to drive the car slowly and carefully but he did not pay any heed to their request and hit the car in the pavement and thereafter a tree. Consequently, he and others sustained multiple injuries.
(iii). PW 1 in his cross-examination deposed that he knew Akshat from the last two months but Akshat was driving the car rashly only on that day. No other contrary evidence has been led by the respondents to show that there was no rashness or negligence on the part of deceased Akshat.
(iv). PW 4 Vijay Kumar in his examination-in- chief testified that offending Swift car was going ahead to his motorcycle. Since something came in front of Swift car, driver applied the brake, consequently, car struck against a tree. By deposing so he tried to establish that accident was not caused due to the negligence of Akshat but it had occurred as something came in front of the car all of sudden. Admittedly, PW4 failed to disclose the alleged something that came in front of the car of Akshat all of sudden. Since the car struck against the pavement and a tree when Akshat applied brake, this itself shows that car was being driven at very high speed otherwise there was no occasion that the car would either be collided MACT No.356962/16 & 357080 /16 Page No. 15 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
with pavement or tree. Thus, testimony of PW4 is not helpful to the petitioner Sunita Goyal to establish that there was no rashness or negligence on the part of driver Akshat.
(v). From the above, I am of the considered opinion that the accident in question had taken place due to the rash and negligent driving of the Akshat. Accordingly, issue no.1 is decided in favour of Rose Smile Sahota and against the respondent.
(vi). Since Akshat had died in the said accident, petitioner Sunita Goyal succeeds to establish that deceased Akshat died due to the involvement and use of the car in question. Accordingly, issue no.1 in MACT Suit No. 357080/16 is also decided in favour of petitioner Sunita Goyal and against the respondents.
Issue No.2:
In MACT Suit No. 356962/2016:-
(i) After the accident, injured was taken to B.L.Kapoor Super Specialist Hospital, Karol Bagh. However, on the same day he was shifted to Indian Spinal Injuries Centre, New Delhi, where he remained admitted w.e.f 26.11.2012 to 14.12.2012. As per discharge summary petitioner was diagnosed Burst Fracture C7 with unilateral facet dislocation with ASIA-B neurology with bowel and bladder MACT No.356962/16 & 357080 /16 Page No. 16 of 57 Rose Smile vs. Sunita Goel & ors.
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involvement and fracture shaft of femur right side. He was operated on 27.11.2012. At the time of discharge condition of the patient was stable. He was advised to visit Hospital after 3 months. Since petitioner has not filed complete follow-up treatment record, it is not feasible for this Tribunal to hold for how long he remained under treatment. As per disability certificate Ex PW15/A petitioner sustained 100% locomotor disability which is permanent in nature. Since petitioner sustained 100% locomotor disability which is permanent in nature, it can safely be culled out that petitioner must be remained under treatment for a long period.
Income of the petitioner:
(i) Ld. Counsel appearing for petitioner contended that since petitioner passed 12th standard and he also got admission in Sheridan University, Canada, income of the petitioner should be assessed at ` 30,000/- per month.
(ii). Per contra, counsel appearing for insurance company refuted the said contention by sagaciously arguing that since petitioner was only 12th passed and he was a resident of Jhallander, Punjab, his income is liable to be assessed as per minimum wages applicable to under graduate workers.
(iii). Admittedly, during inquiry petitioner has MACT No.356962/16 & 357080 /16 Page No. 17 of 57 Rose Smile vs. Sunita Goel & ors.
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not led any evidence to justify his plea that his income should be assessed at ` 30,000/- per month. Mere fact that he passed 12th standard and got admission in Canada is not itself sufficient to asses his income at ` 30,000/- p.m. Since petitioner was 12th passed and a permanent resident of Punjab, income of the petitioner is liable to be assessed as per minimum wages applicable to under graduate workers prevalent at the relevant time in Punjab. Since at the relevant time minimum wages for clerk was ` 183.42 per day, monthly income of the petitioner is assessed at ` 5,503/- for the purpose of computation of just compensation.
Loss of Income:
(i) As already stated that petitioner remained admitted at Indian Spinal Injuries Centre w.e.f 26.11.2012 to 14.12.2012 and at the time of discharge he was advised to visit hospital after 3 months. Further from the disability certificate Ex.PW 15/A, it is clear that petitioner has sustained 100% locomotor disability which is permanent in nature. Petition has been filled on 27.04.2013. Since petitioner sustained 100% locomotor disability, it can safely be culled out that petitioner was not able to pursue his studies till the filling of claim petition. Accordingly, loss of income for five months @ ` 5,503/- per month; amounting ` 27,515/- (` 5,503 X 5) is awarded to him.MACT No.356962/16 & 357080 /16 Page No. 18 of 57
Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
Expenditure on Medical Treatment:
(i) As already stated that petitioner was initially taken to B.L.K Hospital and thereafter he was shifted to Indian Spinal Injuries Centre, where he remained admitted till 14.12.2012. As per record petitioner had spent ` 1,581/- on the treatment given at BLK Super Specialist Hospital. As per final bill (part of the Ex. PW 5/1), Indian Spinal Injuries Centre, New Delhi charged a sum of ` 6,53,567/- for the treatment given to the petitioner as indoor patient during the period 26.11.2012 to 14.12.2012. As per bill, entire bill was paid by the patient. Accordingly, patient is entitled for reimbursement of the said bills and same is awarded to the petitioner.
(ii). Further, Indian Spinal Injuries Centre also charged a sum of ` 30,705/- during the period 26.11.2012 to 12.12.2012 for various medical tests, room charges, wheel chair etc. the said bills also also part of Ex. PW 5/1. Counsel for petitioner also placed on record pharmacy bills of the hospital for the sum of ` 45,912/-, which is also part of Ex. PW5/1. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for reimbursement of the said amount. Accordingly, a sum of ` 76,617 (` 30705 + 45,912) is awarded to him.
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(iii). As per Ex. PW5/1 during the period 01.03.2013 to 03.08.2015, petitioner attended Indian Spinal Injuries Centre for the purpose of follow-up check up, various medical tests, physiotherapy etc. Hospital had issued bills for the treatment/service provided by the hospital to the petitioner during the said period. The total amount charged by the hospital during the above said period is ` 1,21,557/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for reimbursement of the said amount. Accordingly, same is awarded to the petitioner.
(iv). On 26.11.2012 Indian Spinal Injuries Centre also charged a sum of ` 12,707/- for various medicine. The bills are on record. The same is also part of Ex. PW 5/1. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, this Tribunal has no reason to disbelieve the said bills. Accordingly, a sum of ` 12,707/- is awarded to petitioner.
(v). PW2 testified that he is a proprietor Paras chemist and had issued invoice Ex. PW2/1 in sum of ` 3,458/- for the medicine to the petitioner. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for reimbursement of the said amount. Accordingly, MACT No.356962/16 & 357080 /16 Page No. 20 of 57 Rose Smile vs. Sunita Goel & ors.
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same is awarded to the petitioner.
(vi). PW3 testified that he is the proprietor of Nitin Medicos and issued invoices Ex.PW 3/1 and Ex.PW 3/2 in the name of petitioner for medicine. The medicines were prescribed by the Indian Spinal Injuries Centre. The total amount of the said bills is ` 18,264/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for above said amount. Accordingly, same is awarded to the petitioner.
(vii). PW4 testified that he is sales manager of M/s Friends Corner (Chemist) and he had issued the invoice Ex.PW 4/1 to the petitioner for the medicine prescribed by the Doctor. The total of the said bills is ` 16,223/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for reimbursement of the said amount. Accordingly, same is awarded to the petitioner.
(viii). PW8 is proprietor of Daang Medicos and testified that he had issued medical invoices Ex.PW 1/2 (colly) for medicine prescribed by the Doctor during the period w.e.f 27.12.2012 to 12.02.2013. The total of the said bills is ` 2,803/-. Since during inquiry, no contrary cogent evidence has MACT No.356962/16 & 357080 /16 Page No. 21 of 57 Rose Smile vs. Sunita Goel & ors.
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been led, which may raise any suspicion over the said bills, I am of the view that petitioner is entitled for reimbursement of the said amount. Accordingly, same is awarded to the petitioner.
(ix). PW9 testified that he is owner of M/s Krishna & Sons and issued the medical bills during period w.e.f 04.02.2013 to 09.09.2013 in the name of petitioner on the prescription of the doctor. The total of the said bills is ` 1,633/- only. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, same is awarded to the petitioner.
(x). PW10 testified that he is dealing clerk Jai Ganga Medicos and the firm had issued bills Ex.PW 10/2 (colly) in the name of petitioner during the period w.e.f 04.02.2013 to 19.03.2013. The total of the said bills is ` 2,485/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, same is awarded to the petitioner.
(xi). PW11 is Authorized representative of Patel Hosptal Civil Line Jhallander and testified that petitioner got treatment from their hospital on 28.01.2013 and 08.02.2013 and hospital charged a sum of ` 5,905/- for the treatment given to the petitioner during the said period. Since during MACT No.356962/16 & 357080 /16 Page No. 22 of 57 Rose Smile vs. Sunita Goel & ors.
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inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, same is awarded to the petitioner.
(xii). PW12 is a Technician Lab of Dhingra Clinical Laboratory and testified that their laboratory issued the bills Ex. PW12/2 (Colly) in favour of petitioner in sum of ` 280/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills, same is awarded to the petitioner.
(xiii). PW13 is Sales Manager of Modern Surgical House. He testified that firm has issued the bills Ex. PW13/2 (Colly). The total of the said bills is ` 18,307/-. Since during inquiry, no contrary cogent evidence has been led, which may raise any suspicion over the said bills. I am of view that petitioner is entitled for reimbursement of the abovesaid amount. Accordingly, same is awarded to the petitioner.
(xiv). From the above, it becomes clear that petitioner had spent a sum of ` 9,35,387/- on his treatment including medical expenses, physiotherapy, medical test etc. taken at Indian Spinal Injuries Centre. Accordingly a sum of ` 9,35,387/- is awarded to him.
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Physiotherapy Charges:-
(i). Learned counsel appearing for petitioner contended that petitioner had also taken physiotherapy from Dr. Himanshu Sekhar, Asst. Professor DAV Institute of Physiotherapy, Centre, Jhallander during the period 15.12.2012 to 05.02.2014 and 21.04.2014 to 31.05.2015. It was submitted that doctor had acknowledged the receipt of the payments made to him and same are Ex. PW7/1 (Colly).
(ii). Per contra counsel appearing for insurance company refuted the said contention by arguing that since Dr. Himanshu Shekhar is a Govt. employee, he was not supposed to provide private physiotherapy to the patient. It was argued that since Dr. Himanshu Shekhar had not given bills separately, petitioner is not entitled for bills Ex. PW7/A (Colly).
(iii). PW7 Dr. Himanshu Shekhar in his cross examination admitted that he is employed with DAV Institute of Physiotherapy, Centre, Jhallander and provided Physiotherapy to the petitioner during his part time private practice. He further testified that petitioner used to pay him on weekly, fortnightly and monthly as per the convenience of his parents and he further testified that he did not use to issue bills for the physiotherapy sessions provided by him.
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(iv). No doubt being a Govt. doctor he was not supposed to provide physiotherapy sessions privately but fact in issue before this Tribunal is whether PW7 had provided physiotherapy to the petitioner against the consideration or not and not the professional misconduct of the PW7. If PW7 had violated any term and condition of his service, his office shall have always a right to take appropriate departmental action against him. But petitioner cannot be deprived from the reimbursement of the charges paid to PW7 merely on the ground that PW7 was not supposed to provide physiotherapy sessions privately. PW7 in his examination in chief testified that he had charged a sum of ` 1,91,250/- for the physiotherapy provided by him during the period 15.12.2013 to 08.10.2013. He further charged a sum of ` 77,450/- for the physiotherapy provided by him during the period 09.10.2013 to 05.02.2014 and further charged a sum of ` 26,250/- for the sessions provided during the period 21.04.2014 to 31.05.2014.
(v). From the Ex. PW7/1 (colly), it is clear that , PW7 used to charge ` 750/- for each physiotherapy session. In total he had charged a sum of ` 2,94,750/-. Accordingly, a sum of ` 2,94,750/- is awarded to the petitioner.
(vi). Counsel appearing for petitioner further contended that petitioner also used to take physiotherapy in MACT No.356962/16 & 357080 /16 Page No. 25 of 57 Rose Smile vs. Sunita Goel & ors.
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Canada and spent a sum of 4830/- Canada dollar on physiotherapy.
(vii). Per contra counsel for insurance company refuted the said contention by arguing that since during inquiry petitioner has not led any evidence to prove the said bills and even petitioner has not produced any medical prescription showing that petitioner was required any specialized physiotherapy which was only available in Canada, petitioner is not entitled for any reimbursement of the bills.
(viii). It is pertinent to mention here that petitioner has examined even chemists to prove medicine bills. Though petitioner has filed copy of certain physiotherapy bills showing that he had undergone physiotherapy sessions at Concept Neurological in Canada but petitioner did not file original of the said bills. Even petitioner has not filed any document to show that any doctor ever advised him to take physiotherapy sessions in Canada. In the absence of any such evidence, I am of the considered opinion that petitioner is not entitled for the reimbursement of the bills.
Loss of Education Fees:-
(i). Learned counsel appearing for petitioner MACT No.356962/16 & 357080 /16 Page No. 26 of 57 Rose Smile vs. Sunita Goel & ors.
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contended that petitioner had paid a sum of 43,335.50 Canada dollar for his admission in Sheridan College Ontario, Canada but due to injuries caused to him petitioner cannot pursue his study. It was urged that petitioner is entitled for reimbursement of the said amount.
(ii). Per contra counsel appearing for insurance company refuted the said contention by arguing that petitioner in his examination chief fairly admitted that college authority extended the sessions twice to enable him to attend the course but when petitioner failed to attend the college, college authority returned the entire fee to the petitioner. It was urged that since petitioner had not suffered any loss of fee due to injuries caused to him in the accident, petitioner is not entitled for the said amount.
(iii). Petitioner in his examination in chief testified that he had paid a sum of 43,350.50 Canada dollar at the time of his admission in Sheridan college but he also admitted that college returned the said amount to him when he failed to attend the college due to injuries caused to him. Since college authority refunded the entire amount, petitioner is not entitled for reimbursement of the above said amount.
(iv). However, since due to injury caused to him petitioner had to postpone his study, it can safely be culled out MACT No.356962/16 & 357080 /16 Page No. 27 of 57 Rose Smile vs. Sunita Goel & ors.
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that petitioner has incurred loss of his higher study due to injuries caused to him in the accident. Accordingly, a lump- sum amount of ` 2,00,000/- is awarded to the petitioner under this head.
CONVEYANCE CHARGES:
(i) Ld. counsel appearing for petitioner contended that though petitioner has not filed any bill showing that he had spent any amount on the transportation but since petitioner sustained 100% permanent disability, it can safely be presumed that petitioner must have spent huge amount at the time of taking physiotherapy in Indian Spinal Injury Centre and shifting from Delhi to Jhallander and back.
(ii). Per contra counsel appearing for insurance company refuted the said contention by arguing that since petitioner has not filed any documentary evidence to show that he had spent any amount on conveyance, petitioner is not entitled any amount under this head.
(iii). Indisputably, petitioner has sustained 100% locomotor permanent disability, it means that petitioner needs vehicle for his movement. From the record, it is clear that petitioner had undertaken physiotherapy more than 05 months at Indian Spinal Injury Centre itself. He also got MACT No.356962/16 & 357080 /16 Page No. 28 of 57 Rose Smile vs. Sunita Goel & ors.
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treatment from Jhallander it means that he was shifted from Delhi to Jhallander and thereafter again brought to Delhi. Thus it can safely be culled out that petitioner must have spent huge amount on transportation. Accordingly, lump-sum a sum of ` 1,00,000/- is awarded to him under this head.
Reimbursement of Rent:-
(i). Counsel appearing for petitioner submitted that petitioner had taken a premises on rent at Vasant Kunj for the purpose of physiotherapy at Indian spinal Injury Centre and paid a rent of ` 18,300/- for the month of June-2015. The said contention is refuted by the counsel appearing for insurance company on the ground that since petitioner has not led any evidence to prove that he had taken any premises on rent or paid any rent to landlord, petitioner is not entitled for said amount.
(ii). It is pertinent to state that petitioner has examined all the chemists even to prove the medicine bills. But during inquiry petitioner did not deem it appropriate either to file original receipt or rent agreement or to examine the landlord. Though petitioner has filed counter foil of the rent receipt for the month of June-2015 but since petitioner has not filed original nor examined any witness to prove the fact that he had taken the premises on rent, I am of the view that MACT No.356962/16 & 357080 /16 Page No. 29 of 57 Rose Smile vs. Sunita Goel & ors.
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petitioner is not entitled for any amount under this head.
SPECIAL DIET:
(i) Though no special diet was prescribed by the doctor at the time of discharge but considering the fact that petitioner had undergone multiple surgeries and sustained 100% locomotor permanent disability, it can safely be culled out that petitioner must have taken some special diet for the purpose of fast recovery. Considering the facts and circumstances of the case, a sum of ` 50,000/- is awarded to him under this head.
NURSING/ATTENDANT CHARGES :
(i) Learned counsel appearing for petitioner contended that petitioner had employed one attendant Mr. Vinod Kumar during the period 14.12.2012 to 29.04.2013 on the monthly salary of ` 18,000/- and thereafter w.e.f.
01.05.2013 he hired another attendant James on the monthly salary of ` 5,000/- till 01.02.2014. It was further contended that both the attendants have filed their affidavit to show that they worked as attendant of the petitioner against the abovesaid consideration.
(ii). Per contra counsel appearing for insurance company refuted the said contention by arguing sagaciously MACT No.356962/16 & 357080 /16 Page No. 30 of 57 Rose Smile vs. Sunita Goel & ors.
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that petitioner had filed the affidavit of the above attendants but same is photocopy. Moreover, petitioner did not examine them during inquiry. It was urged that since the said affidavits not proved in accordance with law, petitioner is not entitled for the said amount.
(iii). Perusal of the record reveals that petitioner has filed copy of the affidavit of Vinod Kumar and James to show that they worked as caretaker of petitioner against the consideration as urged by the counsel for petitioner. But petitioner did not deem it appropriate either to file original affidavit or to examine them as witness. Since petitioner has not filed original affidavits of above said caretakers, photo copy of their affidavit has no evidentiary value in the eyes of law. Similarly, since petitioner has not examined either of the attendants, petitioner is not entitled for reimbursement of the amount as mentioned in the affidavit of the above said attendants.
(iv). PW15 in his examination in chief testified that due to disability petitioner cannot stand even with support of someone and he cannot ascertain when he has to pass urine or stool. He further deposed that since his brain is normal, he can perform all function with the help of his brain. Since petitioner has movement of his elbow, he can eat food of his own hand but since he has no movement in his shoulders, he cannot comb of his own. From the testimony of PW15, it can safely be culled out that petitioner is required one MACT No.356962/16 & 357080 /16 Page No. 31 of 57 Rose Smile vs. Sunita Goel & ors.
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attendant for the purpose of passing urine or stool and doing other works.
(vi. Considering the facts and circumstances of the case as whole, a sum of ` 2,50,000/- is awarded to him under this head.
Sanitary Napkin:-
(i). Learned counsel appearing for petitioner contended that since petitioner is unable to assess when he has to pass urine and stool, petitioner is required to wear napkin to maintain hygienic condition.
(ii). Per contra counsel appearing for insurance company refuted the said contention by arguing that since petitioner has not led any evidence in this regard, petitioner is not entitled for any amount under this head.
(iii). From the testimony of PW15 , it is clear that petitioner is unable to ascertain when he has to pass urine and stool. Thus, it can safely be culled out that petitioner is required to wear sanitary napkin to maintain hygienic condition.
No doubt petitioner has not filed any documentary evidence to show how much amount he had spent and is required to spend on sanitary napkins but considering the facts and circumstances of the case and young age of the petitioner a MACT No.356962/16 & 357080 /16 Page No. 32 of 57 Rose Smile vs. Sunita Goel & ors.
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lump-sum amount of ` 1,00,000/- is awarded to him under this head.
Future Medical expenses:-
(i). Learned counsel submitted that petitioner needs more than ` 43,00,000/- on future his medical expenditure including special diet, medical support and for other expenses.
(ii). Per contra counsel appearing for insurance company refuted the said contention by sagaciously arguing that since petitioner has not led any evidence on this aspect, petitioner is not entitled for any such amount.
(iii). Admittedly, petitioner has not led any evidence to show even prima facie that he would require more than ` 43 lakh on his future treatment including special diet and other expenses. In the absence of any cogent evidence on record, petitioner is not entitled for a sum of ` 43 Lakh as urged by the counsel for petitioner.
(iv). However, since petitioner has sustained 100% permanent locomotor disability, it can safely be culled out that petitioner may require medical treatment in future also.
Besides that he may also require to spend some amount on different heads such as conveyance, special diet etc. MACT No.356962/16 & 357080 /16 Page No. 33 of 57 Rose Smile vs. Sunita Goel & ors.
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Considering all these facts and circumstances of the case, a sum of ` 4,00,000/- is awarded to him under this head.
Loss of earning capacity due to disability:
(i) Learned counsel appearing for petitioner submitted that since petitioner sustained 100% locomotor permanent disability, petitioner is entitled for 100% loss of earning capacity on the ground that due to disability, petitioner is unable to do any kind of work.
(ii) Per contra, counsel appearing for insurance company refuted the said contention by arguing that since petitioner has not sustained 100% permanent disability in relation to his whole body and as per testimony of PW15, petitioner can go in teaching line, petitioner is not entitled for any loss of earning capacity.
(iii) Before dealing with the contention raised by the counsel for the parties, I deem it appropriate to refer the judgment Raj Kumar vs. Ajay Kumar and Another 2011 (1) T.A.C. 785 (S.C) where a question arose before the Apex Court whether the claimant is entitled for loss of earning capacity equal to the loss of disability or the loss of earning capacity shall be calculated on the basis of approximate loss of capacity to the injured due to disability. The relevant paras are reproduced as under:-MACT No.356962/16 & 357080 /16 Page No. 34 of 57
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7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When a disability certificate states that the injured had suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or MACT No.356962/16 & 357080 /16 Page No. 35 of 57 Rose Smile vs. Sunita Goel & ors.
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loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and 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 term of money, to arrive at the future loss of earning (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 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.
9. Therefore, the Tribunal has to first MACT No.356962/16 & 357080 /16 Page No. 36 of 57 Rose Smile vs. Sunita Goel & ors.
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decide whether there is any permanent disability and if so the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (I) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (sic disability) (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of MACT No.356962/16 & 357080 /16 Page No. 37 of 57 Rose Smile vs. Sunita Goel & ors.
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livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 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 100%, 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 consequences 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 MACT No.356962/16 & 357080 /16 Page No. 38 of 57 Rose Smile vs. Sunita Goel & ors.
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be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity of 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
(emphasis supplied)
(iv) In the light of aforesaid case law, I proceed to examine the evidence of the case at hand.
(v). In this regard testimony of PW15 is relevant.
(vi). PW15 in his examination in chief testified that petitioner has sustained 100% permanent locomotor disability. Due to disability petitioner is not even able to stand with the support. Further he cannot ascertain when he has to pass urine and stool. However, he also deposed that since brain of the petitioner is normal, he can perform all functions with the help of his brain. He can go in teaching line. He can perform all activities from his brain and his both arms are partially working.
(vii). From the testimony of PW15, it is clear that MACT No.356962/16 & 357080 /16 Page No. 39 of 57 Rose Smile vs. Sunita Goel & ors.
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petition has sustained 100% locomotor permanent disability but since brain of the petitioner is normal, he can earn his livelihood by adopting teaching as his profession. Thus, it cannot be said that due to the above said disability petitioner has sustained 100% loss of earning capacity. It is admitted case of the petitioner that petitioner is pursuing his higher studies in Canada. Thus, there is high probability that he may get some job in teaching line or in any other field. Considering the facts and circumstances of the case and especially the fact that petitioner has sustained 100% permanent locomotor disability, loss of earning capacity is assessed at 75%.
(viii) In case Meer Khan vs. Mehender Kumar Singh & ors. MAC No. 758/2011 decided by Hon`ble High Court of Delhi on 01.11.2017, Hon`ble High Court pleased to add future prospect in the income of claimant in terms of the law laid down in National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (C ) 25590/14 decided by the Hon`ble Supreme Court on 31.10.2017 before calculating the loss of future earning capacity due to disability. The relevant para is reproduced as under:-
"There is, however need for correction in the calculation of loss of future earning since the element of future prospects was omitted. Following the ruling of the Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C ) National Insurance Company Ltd. vs. Pranay Sethi & ors., future prospects to the extent of 10% will have to be added, this keeping in view the facts that the claimant was a MACT No.356962/16 & 357080 /16 Page No. 40 of 57 Rose Smile vs. Sunita Goel & ors.
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self employed person, his income having being assessed notionally, his age on the relevant date being 54 years."
(ix) In view of the aforesaid judgment, I am of the considered opinion that petitioner is also entitled for future prospects.
(x). As per DL and passport, date of birth of petitioner is 01.05.1993. Since the accident had taken place on 26.11.2012, it means that he was 19 + year at the time of accident.
(xi). Since the petitioner was below 40 years old at the time of accident, in view of the law laid down in Praney Sethi's Case, petitioner is entitled for 40% addition in his income towards future prospects.
(xii) Since he was 19+ years old at the time of accident, in view of law laid down in Sarla Verma Case's multiplier of 18 shall be applied in this matter.
(xiii). In view of the above loss of earning capacity is assessed as under:
NAME OF THE HEAD AMOUNT (IN ` )
Annual Income 66,036/-
(` 5503/- X 12)
Future prospects 40% 26,414/-
MACT No.356962/16 & 357080 /16 Page No. 41 of 57
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Total 92,450/-
Multiplier 18 16,64,100/-
75% of 16,64,100 12,48,075/-
(xi) Accordingly, a sum of ` 12,48,075/- is
awarded to him towards loss of earning capacity due to disability.
COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock :-
(i) Learned counsel claimed a sum of ` 1,20,00,000/- under this head. The said contention is opposed by the counsel for insurance company by arguing that petitioner failed to furnish any justification to claim such huge amount.
(ii). As already discussed that petitioner met with an accident when he was returning after attending the marriage function of his friend. Due to the accident he not only sustained injuries but he also sustained 100% permanent loco motor disability. Thus, it can safely be culled out that petitioner must have suffered acute mental and physical shock not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 5,00,000/- is awarded to him under this head.MACT No.356962/16 & 357080 /16 Page No. 42 of 57
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Pain & suffering:
(i) From the above, it can also safely be culled out that petitioner must have also suffered acute pain and suffering not only at the time of accident but even thereafter.
Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 2,00,000/- is awarded to him under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Learned counsel claimed a sum of ` 1,50,00,000/- under this head. This contention is also opposed by the counsel for insurance company by arguing that since petitioner failed to furnish any justification for claiming such huge amount, petitioner is not entitled for any amount under this head.
(ii). Since petitioner sustained serious spinal injuries and due to that reason petitioner sustained 100% loco motor permanent disability. Further due to disability petitioner cannot even stand and he also cannot assess when he has to pass urine and stool. From these facts, it can safely be culled out that petitioner must have suffered huge disappointment, frustration inconvenience, hardship and mental stress. Though it is difficult to quantify the said loss in monetary terms, yet MACT No.356962/16 & 357080 /16 Page No. 43 of 57 Rose Smile vs. Sunita Goel & ors.
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considering the fact that facts and circumstances of the case, a sum of ` 5,00,000/- is awarded to him under this head.
Loss of disfiguration:-
(i). Since petitioner sustained 100% locomotor permanent disability, it can safely be culled out that lower portion of the petitioner disfigured due to the injuries caused to him in the accident. Considering the facts and circumstances of the case, a sum of ` 1,00,000/- is awarded to him under this head Loss of amenities of Life:-
(i) Learned counsel claimed a sum of ` 20 Lakh under this head. As already stated that petitioner remained under treatment for significant period and undergone multiple surgery. Besides that he also sustained 100% locomotor permanent disability, and due to that reason petitioner is unable to stand even with support and cannot assess when has to pass urine and stool. Thus, it can safely be culled out that petitioner must have suffered significant loss of amenities of life and forced to suffer the same in future also. Though it is difficult to quantify the said loss in monetary terms, yet considering the fact that facts and circumstances of the case, a sum of ` 3,00,000/- is awarded to him under this head.MACT No.356962/16 & 357080 /16 Page No. 44 of 57
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Loss of marriage prospects:-
(i) From the testimony of PW15 it is clear that petitioner is unable to asses when he has to pass urine and stool and he is even unable to move as he sustained 100% loco motor permanent disability, thus it can safely be culled out that injured cannot enjoy matrimonial life. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 5,00,000/- is awarded to him under this head.
Loss of Expectation of Life:-
(i) Learned counsel claimed a sum of Rs.
1,50,00,000/- under this head. But since petitioner has not led any evidence to show even prima-facie that due to injuries caused to him in the accident petitioner has suffered any loss of expectation of life. In the absence of any such evidence petitioner is not entitled for any amount under this head.
11. As discussed above, the overall compensation is tabulated as under:-
NAME OF HEAD AMOUNT (In ` ) Loss of income 27,515/- Medical Expenses 9,35,387/- MACT No.356962/16 & 357080 /16 Page No. 45 of 57 Rose Smile vs. Sunita Goel & ors. Sunita Goyal vs. Sachin Jain & ors. Physiotherapy charges 2,94,750/- Loss of Education fees 2,00,000/- Conveyance charges 1,00,000 Rent charges 00 Special Diet 50,000 Attendant Charges 2,50,000 Sanitary & Napkin Charges 1,00,000/- Future Medical Expenses 4,00,000/- Mental and physical shock 5,00,000/- Pain & suffering 2,00,000/- Loss of amenities of life 3,00,000/- Loss of inconvenience/hardship/ 5,00,000 disappointment/mental stress Loss of disfiguration 1,00,000/- Loss of expectation of Life NA Loss of Earning Capacity due to disability 12,48,075/- Loss of marriage prospects 5,00,000/- Total 57,05,727/- Round off :- ` 57,06,000/-
(Rupees Fifty Seven Lac & Six Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the DAR MACT No.356962/16 & 357080 /16 Page No. 46 of 57 Rose Smile vs. Sunita Goel & ors.
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i.e. 27.04.2013 (except for the period from 02.02.2015 to 28.01.2019 as vide order dated 02.02.2015 petitioner was debarred to claim interest till conclusion of evidence which he concluded on 28.01.2019) till realization of award amount.
12. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 08.03.2019 regarding his financial status, in terms of clause 27 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 07, 2018, wherein he testified that he needs about between ` 1,00,000/- to ` 1,25,000/- per month for his house hold expenses.
(ii) In view of the statement of petitioner, on realization of award amount, a sum of ` 7,06,000/- plus entire interest be released to him from the award amount and the balance amount of ` 50 lac in terms of the directions contained in FAO No. 842/2003 dated December 07, 2018, shall be put in 25 monthly fixed deposits in his name in a MACAD account of equal amount of ` 2,00,000/- each for a period of 01 month to 25 months. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account No. 3514001500175228, Punjab National Bank MACT No.356962/16 & 357080 /16 Page No. 47 of 57 Rose Smile vs. Sunita Goel & ors.
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Nakodar Road, Jalandhar, Punjab without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek the release of ` 5,70,600/- from the bank located within the jurisdiction of this Tribunal itself.
13. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 26.11.2012
(ii) Name of the injured Rose Smile Sahota
(iii) Age of the injured 19+ years
(iv) Occupation of the injured Not proved
(v) Income of the injured 5,503/- p.m
(vi) Nature of injury Grievous
(vii) Medical treatment taken by Indian Spinal Injuries the injured Centre
(viii) Period of hospitalization 26.11.2012 to 14.12.2012
(ix) Whether any permanent Yes, 100% locomotor permanent disability MACT No.356962/16 & 357080 /16 Page No. 48 of 57 Rose Smile vs. Sunita Goel & ors.
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disability? If yes, give details:
10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 9,35,387/-
(ii) Expenditure on Physiotherapy 2,94,750/-
(iii) Expenditure on conveyance 1,00,000/-
(iv) Expenditure on special diet 50,000/-
(v) Cost of nursing/attendant 2,50,000/-
(vi) Loss of earning capacity 12,48,075/-
(vii) Loss of income 27,515/-
(viii) Loss of Education Fees 2,00,000/-
(ix) Sanitary and Napkin 1,00,000/-
(x) Future Medical Expenses 4,00,000/-
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical
shock 5,00,000
(ii) Pain and suffering 2,00,000
(iii) Loss of amenities of life 3,00,000
(iv) Disfiguration 1,00,000
(v) Loss of marriage prospects 5,00,000
(vi) Loss of earning, inconvenience, 5,00,000
hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 100% permanent nature of disability as permanent or locomotor disability temporary MACT No.356962/16 & 357080 /16 Page No. 49 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 75% in relation to disability
(iv) Loss of future Income-(Income x% 12,48,075/-
Earning Capacity x Multiplier) 14 Total Compensation (Rounded off) 57,06,000/-
15. INTEREST AWARDED 9 % PA 10,42,556/-
02 Year 0 Months 11 days
17. Total amount including interest 67,48,556/-
18. Award amount release As mentioned in para no. 12
19. Award amount kept in FDRs As mentioned in para no.12
20. Mode of disbursement of the award as mentioned in amount to the claimants (s) (Clause para No. 12
29)
21. Next date for compliance of the award. 06.05.2019 (Clause 31.)
14. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 07, 2018:-
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit account of the claimants i.e. saving bank account of the claimants shall be individual saving bank account and shall not a joint account.MACT No.356962/16 & 357080 /16 Page No. 50 of 57
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Sunita Goyal vs. Sachin Jain & ors.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(iii) The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant near the place of his residence.
(iv) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of his residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimant so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vii) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
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Sunita Goyal vs. Sachin Jain & ors.
LIABILITY TO PAY:-
15. Since the offending car was registered in name of respondent no. 2 and was being driven by son of respondent no. 1 and insured with respondent no.3, all shall be jointly and severally liable to pay compensation to the petitioner.
(xiii). In view of above, Issue No. 2 is decided in favour of petitioner and against the respondents.
RELIEF:
16. Since the offending vehicle was duly insured with respondent no. 3, respondent no. 3 (HDFC ERGO General Insurance Company Ltd.) respondent no. 3 is directed to deposit a sum of ` 57,06,000, in MACT Suit No. 356962/16 with interest @ 9 % per annum from the date of filing of claim DAR i.e. 27.04.2013 (except for the period from 02.02.2015 to 28.01.2019) till realization of the amount in the bank (Central Bank of India) as mentioned in the award or with Nazir of this Tribunal within 30 days under intimation to the petitioner failing which respondent No. 3 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
(i). Lrs of Driver, owner and insurer of the MACT No.356962/16 & 357080 /16 Page No. 52 of 57 Rose Smile vs. Sunita Goel & ors.
Sunita Goyal vs. Sachin Jain & ors.
offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(ii) A copy of this judgment be sent to Respondent No.3. for compliance within the time granted. Respondents are further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount in claim matter within 15 days of the deposit with the interest upto date of intimation of deposit to the claimants and his counsel namely Sh. JK Bhola, Advocate, Ch. No. 388, Civil Wing, Tis Hazari Court, Delhi, Mob. no. 9811211146.
(iii) Nazir is directed to place a report on record on 06.05.2019 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
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Sunita Goyal vs. Sachin Jain & ors.
In MACT Suit No. 357080/16:-
(i) Learned counsel for petitioner submitted that since claim petition has been filed under section 163-A of MV Act, claimant is not required to prove rashness or negligence.
It was contended that since deceased had died due to the involvement/use of offending car, respondents are liable to pay compensation to the claimant. In support of his contention counsel placed a reliance on the judgment "Shivaji & Anr. Vs. Divisional Manager United India Insurance Company Ltd. & Ors." Civil Appeal no. 2816 of 2018 decided by Apex Court on 09.08.2018.
(ii) Per contra counsel appearing for insurance company refuted said contention by sagaciously arguing that since deceased had stepped into the shoe of owner, in view of law laid down in "New India Assurance Company Ltd. Vs. Sadanand Mukhi & Ors." Civil appeal no. 7402/18 decided by Apex Court on 18.12.2008, deceased cannot be treated as third party, accordingly, insurance company is not liable to pay any compensation.
(iii) Since claim petition has been filed under section 163A of MV Act, claimant is not required to prove rash or negligent act on the part of driver of the offending car.
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Sunita Goyal vs. Sachin Jain & ors.
However, in order to seek compensation, claimant is duty bound to establish that deceased was a third party qua insurance company.
(iv) Perusal of the judgment "Shivaji & Anr. Vs. Divisional Manager United India Insurance Company Ltd. & Ors.(supra) reveals that claim petition was filed under section 163-A of MV Act as deceased was driving the car and the said car met with an accident as car dashed into the of- fending truck. Since petition was under section 163A of MV Act, learned Tribunal granted compensation to the claimants. However, the award was challenged by the insurance company before Hon'ble High Court of Karntaka. Hon'ble Court allowed the appeal by setting aside the award holding that since deceased was himself a tort-feasor and responsible for causing the accident petitioners are not entitled for any compensation. However, the said finding was set aside by the Supreme Court by holding that under section 163-A of MV Act insurer cannot raise any defence of negligent on the part of victim/deceased. Thus, to my mind the said judgment is not helpful to the petitioner in any manner.
(v) In case ICICI Lombard General Insurance vs. Sunita Devi & ors., decided on 10.08.2017 by High Court of Delhi, Ho'nble Court exonerated the insurance company from the liability as the deceased stepped into the shoe of owner after considering the judgments delivered by MACT No.356962/16 & 357080 /16 Page No. 55 of 57 Rose Smile vs. Sunita Goel & ors.
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Hon'ble Supreme Court on the subject. The relevant para of the judgment is reproduced as under:-
"The insurer, by the present appeal, reiterates its plea for exoneration. This plea must be accepted in view of the law laid down by the Supreme Court in cases reported as New India Assurance Company Ltd. vs. Sadanand Mukhi & ors. (2009) 2 SCC 417; Ningamma & anr. vs. United India Insurance Company Ltd. (2009) 13 SCC 710 and by this court in Oriental Insurance Company Ltd. vs. Shakuntala & Anr. MACA 142/2007, decided on 02.03.2016. The deceased having borrowed the vehicle from its owner and having stepped into his shows would not be covered by the third party risk. Thereafter, the impugned judgment in so far as it fastened liability against the appellant/insurance company is set aside."
(vi) In the instant case Akshat was not owner of the vehicle; rather car belonged to his relative i.e. Sachin Jain (respondent no. 1). Since car belonged to the relative of deceased, it shows that he had borrowed the car from respondent no. 2. Since he borrowed the car from respondent no. 2, deceased stepped into the shoe of owner and since owner cannot be a recipient of compensation from himself, deceased cannot be considered as third party qua insurer.
(vii) Since deceased stepped into the shoe of owner, insurer of the car is not liable to indemnify the liability of MACT No.356962/16 & 357080 /16 Page No. 56 of 57 Rose Smile vs. Sunita Goel & ors.
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insured as owner cannot be a recipient of compensation from himself.
(viii) In view of the aforesaid discussion and I am of the considered opinion that claimant is not entitled for any compensation. Accordingly, claim petition is dismissed.
(ix) Copy of the award be also sent to the nodal officer of the Central Bank of Judge-01, his email:-
[email protected] and [email protected] co.in
(x) The original award be placed in the MACT Suit No. 356962/16 and copy thereof be placed in another matters.
(xi) File be consigned to Record Room.
Announced in open court on this 4th day of April, 2019 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/v PAWAN Digitally signed by PAWAN KUMAR KUMAR JAIN Date: 2019.04.04 JAIN 15:45:16 +0530 MACT No.356962/16 & 357080 /16 Page No. 57 of 57