Delhi District Court
Sh. Ramesh Kumar S/O Sh. Dharam Singh vs ) Sh. Ajab Singh S/O S/O Sh. Dalel Singh on 6 March, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT Case No. 375/10)
Sh. Ramesh Kumar S/o Sh. Dharam Singh
R/o H. No.508, Village & P.O. Auchandi,
P.S. Bawana, Delhi-110039 ...Petitioner
Versus
1) Sh. Ajab Singh S/o S/o Sh. Dalel Singh
R/o H. No.144, Village & P.O. Bijwasan,
New Delhi-61.
2) The United India Insurance Co. Ltd.
8th Floor, Kanchanjunga Building,
Barakhamba Road, Connaught Place,
New Delhi
3) Sh. Kuldeep S/o Sh. Chander Singh
R/o D-9, Ward No. 31, Vishnu Garden,
Gurgaon. ...Respondents
Date of institution---15.09.2006
Date of decision-----06.03.2012
(Application u/s 166 and 140 of Motor Vehicles Act
for grant of compensation)
**********************************
JUDGMENT:
In the midnight of 06.07.2006 and 07.07.2006 the injured/petitioner Sh. Ramesh Kumar alongwith Constable Rajbir was standing on Rithala Road near Police Picket, Sector-11, Rohini and was checking the vehicles coming from Rithala side to Sector 11 side. At about 02:20 A.M. when the injured/petitioner Sh. Ramesh Kumar was standing and checking the vehicles then a Maruti Car bearing its registration -2- no.HR-26/L-2188 being driven by respondent no.1 at a very high speed, rashly, negligently, without blowing any horn, without taking necessary precautions, without observing proper look out, violating the traffic rules came from Rithala side and violently hit the injured/petitioner with a great force. As a result of this violent impact the injured/petitioner Sh. Ramesh Kumar fell down on the road and received serious/grievous injuries to all over his body. The injured/petitioner was removed to Baba Saheb Ambedkar Hospital from the place of accident and got admitted there and he is still under active treatment. The said accident took place solely and entirely due to the rash and negligent driving of Sh. Ajab Singh respondent no.1 of Maruti Car No. HR-26/L-2188.
It is further stated that due to this accident the petitioner received serious/grievous injuries as aforementioned in para no.11 of the claim petition. He was removed to Dr. Baba Saheb Ambedkar Hospital from the place of the accident and got admitted there and discharged on 14.07.2006. On the basis of this, FIR No. 533/06, under Section 279/337/304A IPC was registered at P.S. Prashant Vihar. Injured/petitioner received following injuries :-
− As per Discharge slip & MLC.
− Fracture Shaft of Femur (Right) − Fracture Ulna (Right) − Fracture femur treated with ORIF with Static I.M. Nailing − Profusely bleeding − Multiple abrasions and blunt injuries all over body.
Written statement filed by respondent no. 1 and respondent no. 3 and written statement was also filed on behalf of respondent no. 2 -3- Insurance company wherein the allegations of the petitioner was denied. Insurance company admitted that vehicle was insured with it but tried to avoid its liability on technical grounds. On the pleadings of the parties, following issues were framed on 12.02.2007:-
1. Whether in the intervening night of 06.07.2006 and 07.07.2006 at about 2:20 A.M. car no. HR-26/L-2188 which was driven by respondent no.1 in rash and negligent manner hit petitioner near Police Picket, Sector-11, Rohini and caused injuries to him ? OPP.
2. Whether petitioner is entitled to compensation as prayed, if so, to what amount and from which of the respondents? OPP.
3. Relief.
Petitioner in support of his case examined 9 witnesses. PW-1 Ct. Dalbir Singh proved the copy of FIR as Ex.PW-1/A. Sh. Ramesh Kumar i.e. petitioner examined himself as PW-2 as well as eye witness of the accident and exhibited his affidavit in evidence as Ex.PW-2/A and proved the documents i.e. Ex.PW2/1 to Ex.PW2/58. He stated in his examination that immediately after the accident, he was removed by the CATS ambulance to Dr. Baba Saheb Ambedkar Hospital at Rohini from the place of accident and got himself admitted there and he was discharged on 14.07.2006 after operation and fixation of I.M. Nail in his right thigh. Thereafter, he visited in the OPD of Dr. Baba Saheb Ambedkar Hospital and Safdarjung Hospital for repair of ligament (ACL-reconstruction done) and he was discharged on 06.01.2007 after operation. Thereafter, he visited in the OPD of Safdarjung Hospital on various dates for dressings and physiotherapy and he is still under active treatment. He had visited various -4- hospitals for about 50-60 times for regular check up besides the period of above mentioned two admissions. He received serious/grievous in the accident and he has suffered from permanent disability. He further stated that he spent more than Rs. 50,000/- on his medical treatment. He also spent Rs. 35,000/- on conveyance, Rs. 20,000/- on special diet and Rs. 18,000/- on attendant charges. He has undergone a lot of pain and sufferings on account of injuries sustained by him in the accident. He further stated that in future one more operation for removal of I.M. Nail from his right leg is to be done and he will again have to incur another Rs. 15,000/- on his future medical treatment and he will have to take rest for another three weeks. He further stated that at the time of accident, he was doing service as Head Constable with Delhi Police and he was posted at P.S. Prashant Vihar and was getting salary of Rs. 12,400/- p.m. from the said employment. He further stated that due to the injuries sustained by him in the accident, he could not work for about 530 days from 07.07.2006 to 18.12.2007 and he remained on leave for about 530 days. He further stated that on 07.10.2008 he got X-ray of his right thigh bone from Delhi MRI Scan Centre at Hauz Khas and as per the report of X-ray the fracture of shaft of his right femur bone is partially united.
Petitioner also examined Sh. Raj Kumar, Record Clerk, Baba Saheb Ambedkar Hospital, Rohini as PW-3, who proved the MLC of the petitioner as Ex.PW3/A. He further stated that the petitioner was admitted in their hospital on 07.07.2006 and discharged on 14.07.2006 and the entire record (running into 12 pages) proved as collectively Ex.PW3/B. Petitioner further examined Sh. Abhay Ram, Record Clerk, Safdarjung Hospital, New Delhi as PW-4, who stated that the petitioner was admitted in their hospital on 03.01.2007 and discharged on 06.01.2007 and -5- proved the photocopy of the said record as Ex.PW4/A. He further stated that the documents Ex.PW2/7 to Ex.PW2/19 were issued from their hospital.
PW-5 HC Prem Singh proved the pay slips of the petitioner for the month of November, 2007 and December, 2007 and proved the same as Ex.PW5/1 & Ex.PW5/2. He further stated the document already Ex.PW2/53 which is the salary slip of the petitioner for the month of July, 2006, was issued by DCP office, North-west District, Delhi. In the cross examination, PW-5 stated that during the period of leave of petitioner due to accident, he was paid full salary.
PW-6 ASI Harinder Singh stated that as per the record, petitioner HC Ramesh Kumar remained on leave from 07.07.2006 to 02.05.2007 (300 days earned leave), 03.05.2007 to 02.12.2007 (214 days commuted leave), 03.12.2007 to 18.12.2007 (16 days extra ordinary leave). PW-6 proved the attested copy of order granting/sanctioning leave to HC Ramesh Kumar as Ex.PW6/1 (running into 3 pages). He further stated that 300 days earned leaves are encashable and as per new rules, commuted leaves (150 days half pay leave = 75 days full pay leave) are encashable.
PW-7 HC Sanjay Kumar stated that the petitioner has not been paid any amount regarding reimbursement of medical expenses from 05.09.2007 till date and proved the copy of letter issued by DCP office as Ex.PW-7/1. He admitted the suggestion that the medical reimbursement is given only when the original medical bills are submitted.
PW-8 ASI Satpal, Accounts Officer who stated that he has brought the statement of recovery done by the Accounts Branch of Outer District. He further stated that as per record Rs. 12,000/- were recovered -6- from the salary of the petitioner HC Ramesh Kumar being recovery of excess payment made to him during the period he remained on leave. The attested copy of the salary statement for the financial year 2007-08, 2008-09 & 2009-10 (running into 3 pages) is Ex.PW8/A and the recovery shown at page no. 2 & 3 are marked at point-A to A-1 and B to B-1.
Petitioner further examined Dr. Sanjay Kumar as PW-9 who stated that the petitioner was assessed to have suffered the permanent disability of 59% in relation to right lower limb and proved the disability certificate as Ex.PW-9/A and stated that due to permanent disability suffered by the injured he cannot walk and run normally and cannot sit with cross legs and cannot squat.
No evidence was led on behalf of any of the respondents.
Nobody appeared on behalf of respondent Divisional Manager, after some time till last date despite directions given to appear in person. They did not turn up despite service of reminder. Standard of proof in MACT cases is lesser than that of civil cases which are to be decided on the balance of probabilities and lesser than that of criminal cases also where the negligence part of the offending driver is to be proved beyond doubt.
I have heard counsel for the parties and have perused the entire record. My decision on the above mentioned issues is as under:
Issue No. 1:
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:-7-
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
In N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. (1980) 3 SCC 475, Mr. Justice V.R. Krishna Iyer and Mr. Justice D.A. Desai of Division Bench of Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Onus of proving issue no. 1 was on the petitioner who has examined himself and corroborated his story again in petition regarding the manner in which the accident took place and rash and negligent driving of the vehicle at 2:00 A.M. in the morning when injured was on inspection -8- duty of the vehicle on the road being part of his official duty. Driver and owner have taken certain pleas but nothing good come on record in favour of the driver and owner of the vehicle in question and no evidence has been led by respondents in support of their contention. Nothing much could come in favour of the respondent no. 1 and respondent no. 2 in cross examination when the petitioner was examined as witness. There is no allegation that driver and owner of the vehicle are known to injured prior to date of accident or IO or injured were nursing any grudge against them or could have any enmity with them. No complaint has been lodged against the IO of the case for referring their case to the Criminal Court. No complaint has been filed against IO for false allegation and accused is facing trial of the case and hence inference could be drawn on the basis of the statement of eye witness examined before this Tribunal and no complaint having been lodged by driver and owner of the vehicle against the IO or that he knew them earlier or nursing having any grudge against them. The way accident took place i.e. rash and negligent driving of the vehicle by the driver on account of which the injured who was doing his duty at 2:00 A.M. on the naka for checking the vehicle which are coming from the border side at late night hours. On the basis of evidence available on record, it has been established before this Tribunal that accident took place because of rash and negligent act of offending vehicle by the driver of the vehicle resulting into grievous injury having suffered on the person of injured/petitioner Ramesh Kumar. This issue is thus decided in favour of petitioner.
Issue no. 2:-
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:-9-
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) -10- medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so -11- on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the 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 for as money can do so, in a fair, -12- reasonable and equitable manner. The court or the 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 consequences, is inevitable. A person is not only to be compensated 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 hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;
a) Loss of earning during the period of treatment;
b) Loss of future earnings on account of permanent disability.
iii) Future medical expenses.
Non Pecuniary damages (General damages):
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iv) Damages for pain suffering and trauma as a consequence of the injuries.
v) Loss of amenities (and/or loss of prospects of marriage).
vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (I), Iii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the amputation of leg.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has further observed as under:
-14-"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met b awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period -15- he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life."
Pecuniary damages (Special damages):
Petitioner has examined Dr. Sanjay Kumar from Sanjay Gandhi Memorial Hospital as PW-9 who proved the disability certificate Ex.PW9/A which shows that he had suffered 59% permanent disability in relation to right lower limb. PW-9, however, has not given any estimate about the extent of disability in relation to the whole body but specifically stated that due to permanent disability suffered by the injured he cannot walk and run normally and cannot sit with cross legs and cannot squat.
Petitioner in his petition alleged that he was doing service as Head Constable with Delhi Police and he was posted at P.S. Prashant Vihar and was getting salary of Rs. 12,400/- p.m. The salary of the deceased at Rs. 12,400/- p.m. has to be taken into account for the purpose of calculation of the dependency.
Petitioner was working as Head Constable with Delhi Police and he was posted at P.S. Prashant Vihar and was getting salary of Rs. 12,400/- p.m. at the time of accident. He further stated that due to the injuries sustained by him in the accident, he could not work for about 530 days from 07.07.2006 to 18.12.2007 and he remained on leave for about 530 days. PW-6 ASI Harinder Singh stated that the petitioner remained on leave from 07.07.2006 to 02.05.2007 (300 days earned leave), 03.05.2007 to 02.12.2007 (214 days commuted leave) and 03.12.2007 to 18.12.2007 (16 days extra ordinary leave). In support of his contention, counsel for the petitioner relied upon the judgment United India Insurance Co. Ltd. vs. -16- Shyam Kumar & others, 2006 ACJ 2092 wherein it is held that principles of assessment--Contention that injured received salary for leave period from his employer - Whether the injured is entitled to compensation for leave post--Held: yes: he could have utilized such leave for some other purpose. Counsel for the petitioner further relied upon the judgment Himachal Road Transport Corporation and another vs. Ganeshwar Sharma and another, 2001 ACJ 931 of Hon'ble Himachal Pradesh High Court, Gujarat State Road Transport Corporation vs. Kamlaben Valjibhai Vora and others, 2002 ACJ 780 of Hon'ble Gujarat High Court and Kersasp Ardeshir Mehta vs. Union of India, 1986 ACJ 1002 of Hon'ble Bombay High Court. So the petitioner is entitled to loss of income of total 530 days i.e. Rs. 2,17,000/- (12,400 x 17.5).
Due to increase of price index and inflation, his salary might have increased in future. Hon'ble Delhi High Court in Bimla vs. Gopal MAC. APP no. 1028/2006 decided on 22-3-2010 while relying upon the decision of Hon'ble Supreme Court given in case Sarla Verma vs. DTC, held that 50% is to be added towards future prospectus even where a person had fixed salary. Accordingly, on basis of these judgments, keeping in view the age of petitioner as 46 years at the time of accident and his fixed income of Rs. 12,400/- per month, future prospectus of 30% has to be added to calculate the loss of income, so his monthly income is taken into consideration at Rs. 16,120/- per month (Rs. 12,400 + 30%).
Petitioner might have suffered functional disability to an extent of 59% in relation to right lower limb due to the accident but his earning capacity cannot be treated as reduced to such an extent in comparison to whole body. This court is concerned with the effect of the permanent disability on the earning capacity of the injured and has to find out the -17- effect of such disability on the functioning of the entire body. Accordingly, after relying upon the latest decision of Hon'ble Supreme Court given in case Raj Kumar vs. Ajay Kumar, Civil Appeal no. 8981/2010 decided on 18-10-2010, I deem it proper to treat this disability to an extent of 30% only for determination of compensation in respect of loss of future earning capacity. Supreme Court in Arvind Kumar Mishra vs. New India Assurance Co. 2010 (4) TAC 385 also in case of 70% permanent disability taken loss of earning capacity to an extent of 30% only. The request of the petitioner to treat this disability to an extent of 100% or atleast minimum 59% has to be rejected.
The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua the whole body. Accident took place in the midnight of 06.07.2006 and 07.07.2006. The date of birth of the petitioner is 10.08.1960 as per his Identity card which point out that on the date of accident he had crossed the age of 46 years but had not completed the age of 47 years. Hence in view of the decision of Hon'ble Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298 multiplier of 13 has to be applied to count his loss of earning capacity. Hence the total loss of future income or earning capacity comes to Rs. 7,54,416/- as per the formula (Rs. 16,120 x 12 x 13 x 30%). Accordingly, petitioner is granted loss of future income at Rs. 7,54,416/-.
The petitioner has placed on record certain receipts and bills to show that he had incurred expenses of Rs. 42,940/- upon his treatment PW-2/24 to PW-2/52. PW-7 HC Sanjay Kumar during his deposition stated that the petitioner has not been paid any amount regarding reimbursement of medical expenses from 05.09.2007 till date and proved the copy of letter issued by DCP office as Ex.PW-7/1. No dispute regarding the correctness -18- and genuineness of these bills is raised in the cross examination of petitioner, so the amount of these medical bills at Rs. 42,940/- is liable to be paid to him.
Petitioner has alleged that he spent Rs.35,000/- on conveyance and Rs. 20,000/- on special diet. Petitioner in his examination stated that immediately after the accident, he was removed by the CATS ambulance to Dr. Baba Saheb Ambedkar Hospital at Rohini from the place of accident and got himself admitted there and he was discharged on 14.07.2006 after operation and fixation of I.M. Nail in his right thigh. Thereafter, he visited in the OPD of Dr. Baba Saheb Ambedkar Hospital and Safdarjung Hospital for repair of ligament (ACL-reconstruction done) and he was discharged on 06.01.2007 after operation. Thereafter, he visited in the OPD of Safdarjung Hospital on various dates for dressings and physiotherapy and he is still under active treatment. He had visited various hospitals for about 50-60 times for regular check up besides the period of above mentioned two admissions. In case of sickness, serious injury and fracture, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Normally no receipt or bill in respect of conveyance and special diet is retained by the people. Hence in absence of any evidence and documentary evidence, I am of the view that maximum petitioner can be paid Rs. 25,000/- towards special diet and Rs. 25,000/- towards conveyance charges.
Petitioner had suffered fracture shaft of femur (right), fracture ulna (right), fracture femur treated with ORIF with static I.M. Nailing, profusely bleeding, multiple abrasions and blunt injuries all over body. Petitioner in his examination stated that he visited in the OPD of Safdarjung Hospital on various dates for dressings and physiotherapy and he is still under active treatment. He further stated that in future one more operation -19- for removal of I.M. Nail from his right leg is to be done and he will again have to incur another Rs. 15,000/- on his future medical treatment Accordingly, the petitioner is granted lump sum of Rs. 30,000/- towards future medical expenses.
Non-pecuniary damages (General damages):
PW-2 petitioner also stated that he suffered fracture shaft of femur (right), fracture ulna (right), fracture femur treated with ORIF with static I.M. Nailing, multiple abrasions and blunt injuries all over body. Judicial notice can be taken of the fact that due to such type of injuries and disability as is suffered by the petitioner, he must have suffered great pain and sufferings and also had undergone some shock of accident. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, extent of disability, hospital admissions and visits to doctors etc. he is granted lump sum amount of Rs. 1,50,000/- towards pain and sufferings, mental shock and trauma a sum of Rs. 1,50,000/- towards loss of amenities and enjoyment of life as per the judgment of Govind Yadav's case.
Respondent no. 2 insurance company has failed to bring on record any other evidence to show that the offending documents of the offending car were not proper or genuine. Insurance company is not able to prove from any evidence that it is liable to be exonerated and is not liable to pay the compensation amount as ordered by the court. Hence, the respondent no. 2 shall be liable to pay the entire compensation amount.
In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from respondent no. 2:-20-
Pecuniary damages (Special damages):
− Medical expenses-----------------------------------------Rs. 42,940/- − Loss of income---------------------------------------------Rs. 21,700/- − Loss of future income------------------------------------Rs. 7,54,416/- − Special diet expenses------------------------------------Rs. 25,000/- − Conveyance charges-------------------------------------Rs. 25,000/- − Future medical treatment expenses-----------------Rs. 30,000/-
Non-pecuniary damages (General damages) − Pain, suffering, mental shock and trauma---------Rs. 1,50,000/- − Loss of amenities and enjoyment of life------------Rs. 1,50,000/-
__________________
Total Rs. 11,99,056/-
Accordingly it is ordered that respondent no. 2 shall pay interest at the rate of 7.5% p.a. on the above compensation amount from 15.09.2006 till realization.
Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 2 insurance company is directed to pay within 30 days a total sum of Rs. 11,99,056/- to the petitioner with interest at the rate of 7.5% p.a. from 15.09.2006 till the compensation amount is fully paid.
It is further ordered that out of compensation amount, sum of Rs. 5 lakh be kept in FDR in the name of petitioner for a period of five years, Rs. 3 lakh be kept in FDR in the name of petitioner for a period of three years and Rs. 2 lakh be kept in FDR in the name of petitioner for a -21- period of two years to be renewed from time to time. Remaining amount alongwith accrued interest be deposited in saving bank account of the petitioner with liberty to withdraw Rs. 6,000/- p.m. till this amount is fully exhausted. However, petitioner is allowed to withdraw the quarterly interest on these FDRs. The FDRs shall not be encashed without permission of the court. No loan or advance shall be granted to the petitioner on the FDR. Respondent no. 2 insurance company to pay further sum of Rs. 55,000/- as counsel fee and Rs. 7,000/- as out of pocket expenses to counsel for petitioner to Sh. R.K. Jain, Adv. by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha.
Copy of this judgment be given to petitioner and counsel for respondent no. 2. File be consigned to record room.
Announced in the open (D.K. MALHOTRA)
Court on 06.03.2012 JUDGE, MACT (OUTER-II)
DELHI