Delhi District Court
Neeraj Arya vs Manoj on 2 February, 2013
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Neeraj Arya v/s Manoj
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL01, DWARKA COURTS, NEW DELHI
MACT NO.: 312/10
Neeraj Arya s/o Sh. Raj Kumar Arya,
r/o B7A, Shyam Vihar,
Najafgarh, Delhi. ........Petitioners
Versus
1 Manoj s/o Balbir Singh
r/o 22, Village Aslatpur,
Khawad, New Delhi
2 Suresh Kumar s/o Balbir Singh
r/o 22, Village Asslatpur,
Khawad, P:O Doulatpur,
New Delhi
3 Royal Sundaram Alliances Insurance Co.
Signature Tower, 9th Floor,
Tower2, Society City - 1, NH8,
Gurgaon, Haryana .......Respondents
1. Date of institution: 20.11.2010
2. Date of framing of issues: 29.7.2011
3.Date of hearing arguments : 29.1.2013
4. Date of decision: 2.2.2013 MACT No. 312/10 Neeraj Arya v/s Manoj (Page 1 of 20) -:2:- Neeraj Arya v/s Manoj AWARD/ JUDGEMENT:
1 Briefly stated facts of the petition are that on 22.5.2010, Neeraj Arya (hereinafter 'the petitioner') was a pillion rider on the motorcycle bearing registration no. DL4SBN7954 which was being driven by his friend while coming from Gurgaon to Najafgarh via Ghuman Hera. At about 3.00 PM on that day when they reached village Kharkhari Nahar then all of a sudden a Santro Car bearing registration no. DL9CQ3203 (hereinafter offending vehicle) driven by Respondent no. 1 (in Short R1) with high speed in rash and negligent manner without observing any traffic norms and dashed against the motorcyclist. As a result thereof, both the riders alongwith the motorcycle fell on the road and sustained severe injuries.
From the place of accident, petitioner was removed to RTRM Hospital in PCR Van where his MLC was prepared. The offending vehicle was owned by respondent no. 2 (in short R2) and the same was insured with respondent no. 3 (in short R3).
3 Pursuant to the service of the notice of the claim petition, respondents appeared and filed their respective WS. A joint WS was filed by R1 & R2 wherein blamed the motorcyclist to cause the accident. An exorbitant compensation is alleged to have been claimed without any MACT No. 312/10 Neeraj Arya v/s Manoj (Page 2 of 20) -:3:- Neeraj Arya v/s Manoj justification.
4. This petition has been resisted by the Insurance Company / R3 after filing Written statement wherein denied the factum of the accident pleading that the accident had occurred solely due to the negligence of driver of the motorcycle and hence the insurance company is not liable to pay any compensation to the claimant, however, it has admitted that the offending vehicle was insured with it in the name of Sh. Suresh Kumar / R2 vide Policy no. VPC0156317000100 valid for the period from 25.06.2009 to 24.06.2010 subject to the terms and conditions of the Policy issued. An exaggerated amount has been claimed without any basis. 5 On the basis of pleadings of the parties, issues were framed on 29.7.2011.
6 Having regard the rival contentions advanced on behalf of both the sides and after perusal the material including the evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether petitioner Neeraj Arya sustained injuries in a motor vehicle accident dated 22.5.2010 due to rash or negligent driving of vehicle no.
DL9CQ3203 by R1? ...OPP
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7 The onus to prove this issue was on the petitioner. Petitioner in
order to discharge the same examined himself as PW1 through affidavit Ex. PW1/A. He during the course of his deposition had narrated the sequence of the events in paragraph 2 of his affidavit to show the manner of the accident. His deposition has not been controverted by the R1 & R2 as they chose to stay away from the proceedings. However, he was crossexamined on behalf of the insurance company but nothing adverse came out so as to discredit his statement. Further more, he was the natural eye witness being the injured of the accident.
8 Besides this, he has proved the documents of the criminal record being forming part of the AIR viz. FIR Ex.PA, site plan Ex.PB mechanical inspection report Ex.PC and MLC Ex.PW1/1 to establish the factum of accident.
9. In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular MACT No. 312/10 Neeraj Arya v/s Manoj (Page 4 of 20) -:5:- Neeraj Arya v/s Manoj manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10 The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011) 11 Having regards to these fact and circumstances, I am of the opinion that petitioner has been able to establish that accident did take place due to negligence of driver of the offending vehicle on the given date, time and place.
12 Issue No.1 is decided in favor of the petitioner accordingly. ISSUE NO 2 Whether the petitioner is entitled to claim compensation, if so, what amount and from whom?
...OPP
13 As issue no.1 is decided in favor of the petitioner in
affirmative, petitioner is entitled for the compensation. Quantum of the
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compensation, however, is required to be calculated. 14 It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account. 15 It has been held by Hon'ble Apex Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
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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 nonpecuniary 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 nonpecuniary 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 ie. 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."
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16 In view of above, in order to calculate the amount of
compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) MEDICINES
AND TREATMENT
17 Petitioner in his affidavit Ex.PW1/A had averred that after the
accident he was removed to RTRM hospital by PCR Van where his MLC bearing no. 1577/10 was prepared. After having given the treatment of eight days as in door patient, he was referred to Safdarjang Hospital for further management where he also took the treatment as indoor patient for about 08 days. The prescription of Safdarjang Hospital is Ex.PW1/2 including medical treatment record. He became disabled person due to injury sustained in an accident and certificate to that effect issued by the RTRM hospital is Ex.PW1/3. It is further averred that he has spent a huge amount on his treatment. He proved the medical bills as Ex.PW1/5.
18. Perusal of the bills on record it appears that the petitioners did take place the medical bills on record amounting to Rs. 40,987.34/. I am of the considered opinion that the petitioner had spent over and above the amount of medical bills but I award a sum of Rs. 40,988/ (round figure) towards medicine and treatment against the bills actually proved.
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18. Before proceedings further, let me quote couple of relevant judgments:
In 2012 ACJ 583(SC)titled 'Mohan Soni v/s Ram Avtar Tomar & Ors.', their lordships were pleased to make the following observations:
"The loss of one of the legs either to the marginal farmer or the cyclerickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of any of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller".
19. In Pati Ram Vs. Kushal Pal Singh reported in 2010 ACJ 1481 it ha been held that ; MACT No. 312/10 Neeraj Arya v/s Manoj (Page 9 of 20) -:10:- Neeraj Arya v/s Manoj Quantum - Injury Leg Amputation of both legs resulting in permanent disability of 85 % in relation to left lower limb and 70 per cent in relation to right lower limb Tribunal assessed loss of earning capacity at 85 per cent and taking income on the basis of minimum wages awarded Rs 5,59,062 towards loss of income due to permanent disability , Rs 10,000/ towards medical expenses , Rs 15,000/ conveyance and speical diet and Rs 1,00,000/ for pain and suffering Appellate court fixed loss of earning capacity at 100 per cent and observing that minimum wages is not akin to future prospects computed loss of income due to permanent disability at Rs 9,86, 580/ plus awarded Rs 1,08,000/ towards conveyance , Rs 1,50,000/ towards pain and suffering Rs 1,00,000/ towards loss of amenities and Rs 50,000/ towards disfiguration Award enhanced from Rs 6,84,062 to Rs 13,94,580/.
In Gulam Nabi Bhat vs. Md. Arman Ali & Ors, MAC. App.335/2009 passed by Hon'ble High Court of Delhi decided on 07/08/2012, his Lordship was pleased to make following observations
14. For example, if the left hand of a claimant is amputated, the permanent MACT No. 312/10 Neeraj Arya v/s Manoj (Page 10 of 20) -:11:- Neeraj Arya v/s Manoj physical of functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as inn the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted MACT No. 312/10 Neeraj Arya v/s Manoj (Page 11 of 20) -:12:- Neeraj Arya v/s Manoj to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
20. Now the question remains to be decided with regard the earning of the deceased. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased.
(b) LOSS OF INCOME: 21 PW1 during the course of his deposition had stated that
he was doing the business of supplier of garment goods to the shop keepers including footpath sellers in the area of Sarojini Market and his earning was Rs.15000/ per month from the said business. He has relied upon the school leaving certificate Ex.PD showing leaving the school without passing the ninth. As there is no corroborative documentary evidence with regard to his earning therefore, the regard is to be had to the minimum wages of non matriculate person prevalent at the relevant time. The accident had taken place on 22.5.2010 and minimum wages of non matriculate person was Rs.
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5850/ as on 1.2.2010. It is stated that due to accident he had to discontinue his work as he was unable to move. His treatment is still continuing. An addition of 30% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.5850/ + 30% which comes to Rs.7605/ (Rs. 5850/ + Rs.1755/).
Relevant paragraph 19 of the Judgment Gulam Nabi vs. Md. Arman Ali & Ors. (SUPRA) is hereby reproduced: This Court in Rakhi vs. Satish Kumar & Ors (MAC. APP. 390/2011) decided on 16.07.2012, referred to the reports of the Supreme Court in General lManager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and Ors.(1994) 2 SCC 176, Sarla Dixit vs. Balwant Yadav.
(1996) 3 SCC 179, Bijoy Kumar Dugar Vs. Bidya Dar Dutta & Ors., (2006) 3 SCC 242, Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Santosh Devi Vs. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and held that as per Santosh Devi even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self MACT No. 312/10 Neeraj Arya v/s Manoj (Page 13 of 20) -:14:- Neeraj Arya v/s Manoj employed.
22 Besides this, petitioner has proved a disability certificate Ex. PW3/A by examining Dr. Vineet Arora, Junior Specialist Orthopedics DDU Hospital, New Delhi. According to Doctor, petitioner was found to have a case of post traumatic fracture right femur with stiff knee of 45% permanent disability in relation to right lower limb. Due to permanent disability his day to day activities have been affected as he was doing the work of the labour at the time of accident and his disability is total. 23 As regards the age of the petitioner is concerned, it has been specifically averred through the affidavit Ex. PW1/A that he was about 18 years at the time of the accident. A perusal of the school leaving leaving certificate Ex.PD it finds mention his date of birth as 10.3.1994. If the age of the petitioner is calculated on that basis then it came to 16 years plus on the date of the accident. The multiplier of the age group from 1520 years is the same. An operative multiplier shall be '18' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor wherein the disability has been stated as 45% and hence compensation is granted as Rs.7605X45/100X18X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md. Arman & Ors (SUPRA) after relying MACT No. 312/10 Neeraj Arya v/s Manoj (Page 14 of 20) -:15:- Neeraj Arya v/s Manoj upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)wherein their Lordships have pleased to make the following observations.
The provision of Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequence, is inevitable. A person is not only to be compensation for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
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24 I, therefore, award a sum of Rs.7,39,206/ to the
petitioner towards loss of earnings due to disability. New India Assurance Co. Ltd. vs. Naresh Kumar & Ors MAC. APP. No. 493/2012 decided on 07.05.2012 is relied upon.
c) PAIN & SUFFERING: 25 Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account. 26 In the present case, it is apparent from the medical record that he had sustained grievous injuries post traumatic fracture right femur with stiff knee. He became a permanent disabled person on account of the injuries sustained in an accident. Due to which, he must have undergone tremendous pain. The mental agony which the petitioner might have undergone at the time of accident cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense. 27 To compensate the petitioner under this head, I award a sum of Rs.40,000/ to the petitioner for pain and suffering.) MACT No. 312/10 Neeraj Arya v/s Manoj (Page 16 of 20) -:17:- Neeraj Arya v/s Manoj CONVEYANCE & SPECIAL DIET : 28 PW1 during the course of his deposition has failed to substantiate the amount spent by him on conveyance and special diet with documentary evidence, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance which is apparent from the OPD tickets available on record. He must have required to take special diet to recover from the injuries sustained by him. 29 I, therefore, award a sum of Rs 20,000/ to the petitioner towards Conveyance and special diet.
30 Keeping in view the nature of injuries and evidence available on record, following amount shall be just compensation: 1 For loss of earning on account of disability : Rs. 7,39,206/ 2 Medical bills : Rs. 40,988/ 3 Pain and Suffering : Rs. 40,000/ 4 Conveyance &Special Diet : Rs. 20,000/ 5 Loss of Amenities : Rs. 25,000/ _____________________________________________________________ Total : Rs. 8,65,194/ (Rupees Eight Lakhs Sixty Five Thousand one hundred and Ninety Four only) _____________________________________________________________ MACT No. 312/10 Neeraj Arya v/s Manoj (Page 17 of 20) -:18:- Neeraj Arya v/s Manoj INTEREST 31 The petition was filed on 20.11.2010. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of petition till its realization. LIABILITY 32 No evidence has been led on behalf of the respondents including the insurance company. Admittedly the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3, therefore, R1, is the principal tortfeasor. R2 & R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the vehicle was insured with R3, therefore, it shall pay the awarded amount.
33 In view of the above discussions issue no. 2 is decided in favour of the petitioner and against the respondents. ISSUE NO 3 Relief.
34 In view of the findings on issues no. 1 and 2 the petitioner is awarded Rs. 8,65,194/ (Rupees Eight Lakhs Sixty Five Thousand one hundred and Ninety Four only) with interest.
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35 The awarded amount be deposited by R3 with State Bank of
India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today with intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 1,65,194/ with interest to the petitioner by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in the following manner:
a) Rs 1 lac in his name for a period of 1 year.
b) Rs 2 lacs in his name for a period of 2 years.
c) Rs.2 lacs in his name for a period of 3 years.
d) Rs.2 lacs in his name for a period of 5 years.
36 The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiary.
37 Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Card to the beneficiary to facilitate identity. 38 No cheque book shall be issued to the beneficiary without the permission of this Court.
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39 The original fixed deposit receipts shall be retained by the Bank
in the safe custody. However, the original Pass Book shall be given to the beneficiary along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiary. 40 No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court. 41 On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to his convenience. 42 The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account. 43 R3 shall inform the petitioner through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioner to collect his cheque.
44 Copy of the award be supplied to both the parties at free of cost. 45 File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 2.2.2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
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