Delhi District Court
Sanjay Kumar vs Dtc on 1 December, 2012
-:1:-
Sanjay Kumar v/s DTC
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
MACP no. 517/2008
Sh. Sanjay Kumar s/o Sh. Bhagwat Swaroop,
r/o H.No. 100, Daulat Pur,
PS Najafgarh
New Delhi ........Petitioner
VERSUS
1. Delhi Transport Corporation
(Through its ChairmancumManaging Director)
IP Estate Head Quarters,
New Delhi.
2. Sh. Bir Singh s/o Sh. R.N.Singh,
r/o Village & PO Badu Sarai,
New Delhi 110071
3. United India Insurance Company,
Kanchanjanga Building,
Kasturba Gandhi Marg,
New Delhi ...... Respondents
1.Date of institution: 30.9.2008
2.Date of framing of issues: 23.7.2009
3.Date of hearing arguments : 19.11.2012
4.Date of decision: 1.12.2012 Case No 517/2008 Sanjay v/s DTC Page 1 of 20 -:2:- Sanjay Kumar v/s DTC AWARD/ JUDGEMENT:
1. Brief facts of the case are that on 28.8.2008 Sh. Sanjay Kumar (petitioner hereinafter) was returning to his house from Gurgaon by driving his motorcycle bearing no. DL9SK 4378 at a normal speed. At about 11.00 am on that day when he reached near Kanganheri village road and was approaching towards the crossing of Daulat Pur then all of a sudden a DTC bus bearing no.
DL1PB5473 (hereinafter the offending vehicle) which was being driven by respondent no. 2 (in short R2) in a rash & negligent manner and hit against the motorcyclist. As a result of the said forceful impact of the hit, the petitioner fell down on the road and sustained musltiple/grievous injuries on all over his body. He was removed to Ayushman Hospital, Dwarka, New Delhi where he was admitted and remained under treatment there for quite long time.
2. Pursuant to service of the notice, respondents appeared and filed their respective written statements. A joint WS was filed by R1 & R2 wherein false implication in the accidental case was claimed pleading that the accident in question was caused by the petitioner himself with negligent driving as he had lost the control over his motorcycle and hit the bus from the rear portion of the driver side.
3. Respondent no.3 in its WS had admitted the facts that the offending vehicle was insured with it vide policy no 041100/31/07/02/00003991 Case No 517/2008 Sanjay v/s DTC Page 2 of 20 -:3:- Sanjay Kumar v/s DTC valid during the period 31.1.2008 to 30.1.2009 in the name of the R1 subject to terms and conditions of the policy issued. An exorbitant amount of compensation is claimed without any basis.
4. On the basis of the pleadings of the parties, issues were framed by the then presiding officer vide order dtd 23.7.2009 and interim award was passed on 11.12.2009.
5. Having heard the arguments advanced on behalf of both the sides and after perusal of material including the evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether Sanjay Kumar, petitioner had sustained injuries on his person in an accident which took place on 28.8.2008 due to negligent driving of Bus bearing registration no. DL1PB5473 being driven in the negligent manner by R2, owned by R1 and insured with R3? .....OPP
6. The onus to prove the issue was on the petitioner. In support of the claim, Sh. Sanjay Kumar, petitioner had averred the details of the accident through the affidavit Ex PW1/A and narrated the manner of accident in para no. 3 of his affidavit. His deposition has not been controverted by R1 & R2 despite availing the opportunity. Infact no question was put to him on the aspect of Case No 517/2008 Sanjay v/s DTC Page 3 of 20 -:4:- Sanjay Kumar v/s DTC negligence and hence, his testimony remained unassailed and uncontroverted. Furthermore, he was natural eye witness being the injured of the accident, therefore, I find no reason to disbelieve his testimony.
7. Besides this, the petitioner has proved the certified copes of the criminal record i.e. Charge Sheet Ex.PA, FIR Ex.PW PB, site plan Ex.PC, mechanical inspection report Ex.PD, arrest memo Ex.PE to establish the factam of the accident.
8. The standard of proof in a claim petition is not as rigid and as high, as in a criminal case. In a criminal case, proof beyond reasonable doubt is required, however, in a criminal petition, it is not so.
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 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 Case No 517/2008 Sanjay v/s DTC Page 4 of 20 -:5:- Sanjay Kumar v/s DTC 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. From the evidence available on record, it stands established that the accident had taken place on the given time, date and place due to the negligent driving of driver of the offending vehicle and hence, issue no. 1 is decided accordingly in favour of the petitioner. ISSUE NO 2 In case, issue no.1 is decided in favour of the petitioner, to what amount of compensation is the petitioner entitled and from whom? .....OPP
12. As issue no.1 is decided in favor of the petitioner in affirmative, petitioner is entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
13. 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 Case No 517/2008 Sanjay v/s DTC Page 5 of 20 -:6:- Sanjay Kumar v/s DTC 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.
14. 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.
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 Case No 517/2008 Sanjay v/s DTC Page 6 of 20 -:7:- Sanjay Kumar v/s DTC 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."
15. 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
16. Petitioner in his affidavit Ex PW1/A had averred that after the accident, he was removed to Ayushman Hospital, Dwarka, where he remained under treatment for a considerable time and number of operations were carried out there. A steel rod was also inserted in his leg. His MLC bearing no. 1005/08 Ex.PF was prepared.
17. PW3 Sh. Satpinder Singh, Ayushman Hospital Dwarka stated that Case No 517/2008 Sanjay v/s DTC Page 7 of 20 -:8:- Sanjay Kumar v/s DTC he was admitted in the hosptial on 28.8.2008 and was discharged on 6.9.2008. He further stated that a final bill of Rs.89,190/ was raised against the treatment expenses. Out of which patient had paid a sum of Rs. 81,000/. Admission, treatment and discharge slip alongwith the bills are collectively Ex.PW3/A. Besides this, he took the treatment as indoor patient from Sinha Fracture and Surgical Centre during 31.1.2009 to 5.2.2009. Discharge summary is Ex.PW 1/2. He also took the treatment as outdoor patient from DDU Hospital and AIIMS hospital Ex.PW1/4, PW1/5, Ex.PW1/6. He also proved the OPD Cards of Max Health Care as Ex.PW1/9. A sum of Rs. 38,330/ was paid to Sinha Fracture and Surgical Centre by the petitioner towards medicines and treatment. Medical bills Ex.PW1/16 to Ex.PW1/20 are proved.
18. Perusal of the evidence on record, it appears that the petitioner must have spent over and above the amount of Rs. 1,19,330/ as the offending vehicle had caused multiple injuries on all over his body and consequent thereupon he became disabled person. Considering the nature of injuries sustained by the petitioner in an accident, I, therefore, award a sum of Rs. 1,19,330/ towards medicines and treatment against the amount actually proved. LOSS ON ACCOUNT OF PERMANENT DISABILITY.
19. Now the question remains to be decided with regard the earning of the deceased. Principle has been decided by Hon'ble Apex Court that Case No 517/2008 Sanjay v/s DTC Page 8 of 20 -:9:- Sanjay Kumar v/s DTC 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.
20. Before proceedings further, let me quote couple of relevant judgments:
In Pati Ram Vs. Kushal Pal Singh reported in 2010 ACJ 1481 it has been held that ; 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 Case No 517/2008 Sanjay v/s DTC Page 9 of 20 -:10:- Sanjay Kumar v/s DTC 6,84,062 to Rs 13,94,580/.
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 Case No 517/2008 Sanjay v/s DTC Page 10 of 20 -:11:- Sanjay Kumar v/s DTC earned.
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".
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 physical of functional disablement may be assessed around 60%. If the claimant was a driver or Case No 517/2008 Sanjay v/s DTC Page 11 of 20 -:12:- Sanjay Kumar v/s DTC 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 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."
21. The petitioner had averred through the affidavit Ex.PW1/A Case No 517/2008 Sanjay v/s DTC Page 12 of 20 -:13:- Sanjay Kumar v/s DTC that he was working with M/s R.N.Infra Communications Pvt. Ltd., Gurgaon as site supervisor and his salary was Rs. 13,300/ per month. But due to the injuries sustained in an accident he was not in a position to perform his duties till date. He further stated that work of site supervisor required constant standing and movement from one place to another and also physical strength for doing that type of job and not only this, his services were terminated by his employer. He would be entitled to an addition of actual salary income on account of future loss of earning as his services have been terminated and his age was 32 years at the time of accident.
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 Case No 517/2008 Sanjay v/s DTC Page 13 of 20 -:14:- Sanjay Kumar v/s DTC 30% in the income has to be provided where the victim had fixed income or was a self employed.
22. PW4 Ravinder Singh, Senior Executive licencing office had deposed that Sanjay Kumar was their employee but his services had been terminated w.e.f. 29.8.2008. Termination letter is proved Ex.PW4/D. Since he remained absent from duties, therefore, no amount was reimbursed to him towards the expenses incurred by him on his treatment. He lastly attended the office on 28.8.2008 and thereafter he did not resume his duties. A certificate to that effect issued by MD is Ex.PW4/C. He also proved the salary certificate amounting to Rs. 13,300/ for the month of April 2007 as Ex.PW4/B. His authorization letters to appear and depose in this matter have been proved as Ex.PW4/A & Ex.PW4/E respectively. Medical certificate furnished by the petitioner is Mark A. He categorically deposed that his services were terminated on the basis of his disability and deformity as he was not capable for the post of site supervisor.
23. PW2 Dr. Gaurav Mishra, RTRM Hospital deposed about the disability certificate Ex.PW2/A relating to the petitioner. According to him the medical board had opined that Sanjay Kumar had sustained disability to the extent of more than 40 % in relation to his right lower limb with the recommendation to re assess after two years.
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24. PW6 Dr. JP Singh was examined to prove the another disability certificate Ex.PW6/A. According to him Sanjay Kumar was re examined on 21.9.2011 by the same medical board and he was one of the member of the said medical board. On examination petitioner was found to have operated case inter trochantieric fracture femur with supra condilur fracture, femur right side with limb length discrepancy with 67% permanent disability in relation to right lower limb. His disability was found permanent in nature during his examination. On being crossexamined he stated that disability would effect his walking capacity, stair climbing capacity, standing on the affected leg, squating on the floor, sitting with cross legs and kneeling.
25. As regards the age of the petitioner is concerned, the petitioner has relied upon the Matric Certificate Ex. PW1/25, where his date of birth has been mentioned as 15.3.1976. This fact finds corroboration in the DL of the petitioner Ex.PW1/22. If the age is calculated on that basis then it came to 32 plus at the time of accident. An operative multiplier shall be '16' 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 67% and hence compensation is granted as Rs. 17290 (13300 + 30%) X67/100X12X16 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 upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC). Case No 517/2008 Sanjay v/s DTC Page 15 of 20 -:16:-
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26. I, therefore, award a sum of Rs.22,24,185/ 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:
27. 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.
28. In the present case, it is apparent from the medical record that he had sustained grievous injuries 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.
29. To compensate the petitioner under this head, I award a sum of Rs. 50,000/ to the petitioner for pain and suffering. CONVEYANCE & SPECIAL DIET :
30. PW1 during the course of his deposition has failed to substantiate the amount spent by him on conveyance and special diet with Case No 517/2008 Sanjay v/s DTC Page 16 of 20 -:17:- Sanjay Kumar v/s DTC 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 Medical Treatment papers available on record. He must have required to take special diet to recover from the injuries sustained by him.
31. I, therefore, award a sum of Rs 30,000/ to the petitioner towards Conveyance and special diet.
32. Keeping in view the nature of injuries and evidence available on record, following amount shall be just compensation: 1 Medicines and treatment : Rs 1,19,330/ 2 For loss on account of permanent disability : Rs 22,24,185/ 3 Pain and Suffering : Rs. 50,000/ 4 Conveyance &Special Diet : Rs. 30,000/ 5 Loss of Amenities : Rs. 30,000/ _________________________________________________________________ Total : Rs. 24,53,515/ (Rupees Twenty Four Lakhs Fifty Three Thousand Five Hundred Fifteen only) INTEREST
33. This petition was filed on 30.9.2008. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of the petition till its realization Case No 517/2008 Sanjay v/s DTC Page 17 of 20 -:18:- Sanjay Kumar v/s DTC LIABILITY
34. No evidence has been led on behalf of the respondents including the insurance company to avoid the liability. Admittedly, the offending vehicle was being driven by R2 which was owned by R1 and the same was insured with R3 and hence, R2 is the principal tort feasor and R1 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured with the R3, therefore it shall pay the awarded amount.
35. In view of the above discussions, issue no. 2 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 3
Relief.
36. In view of the findings on issues no. 1 and 2 the petitioner is awarded Rs. 24,53,515/ (Rupees Twenty Four Lakhs Fifty Three Thousand Five Hundred Fifteen only) with interest inclusive of interim award.
37. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 2,28,515/ with interest to the petitioner by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in his name in the following manners: Case No 517/2008 Sanjay v/s DTC Page 18 of 20 -:19:- Sanjay Kumar v/s DTC
1. Rs. Two Lakhs for a period of Two years.
2. Rs. Five Lakhs for a period of Three years.
3. Rs. Five Lakhs for a period of Four years.
4. Rs. Five Lakhs for a period of Five years.
5. Rs. Five Lakhs for a period of Six years.
38. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiary.
39. 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.
40. No cheque book shall be issued to the beneficiary without the permission of this Court.
41. 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.
42. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
43. On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to his convenience. Case No 517/2008 Sanjay v/s DTC Page 19 of 20 -:20:-
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44. The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
45. 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.
46. Copy of the award be supplied to both the parties at free of cost. 47 . File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 01.12.2012 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
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