Delhi District Court
Sh. Satish Kumar S/O Sh. Pale Ram vs Kumari Kanika Sibal D/O Sh. S.K Sibal on 3 April, 2013
1
IN THE COURT OF MS. VINEETA GOYAL: PO-MACT (SOUTH-01)
SAKET COURTS, NEW DELHI
Injury Case
05.04.2013
Suit No. : 104/11
Unique Case ID no. : 02406C0352332011
IN THE MATTER OF :-
Sh. Satish Kumar S/o Sh. Pale Ram,
aged about 28 years, R/o 5A,
Veena Enclave, Nangloi, Delhi. ............Petitioner
Versus
1. Kumari Kanika Sibal D/o Sh. S.K Sibal
R/o A-14/3, Vasant Vihar, New Delhi. ............Driver
2. S.K Sibal S/o Sh. R.K Sibal
R/o A-14/3, Vasant Vihar, New Delhi. ............Owner
3. The New India Assurance Co. Ltd.
C/o Karampura (311700) Mahavir Bhawan,
C-2 Karampura Commercial Complex,
New Delhi. ................Insurer
...........Respondents
Appearance : Sh. Ishwender Chaudhary, ld. counsel for petitioner.
None for driver and owner.
Sh. A.S Rawat, ld. counsel for insurance company.
Suit No. 104/11 Page no.1/11 2Date of institution of the case : 06.01.2011
Date of institution
in the present court : 06.01.2011
Date of arguments : 03.04.2013
Date of order : 03.04.2013
JUDGMENT/AWARD
1 This order of mine shall dispose off Detailed Accidental Report filed by
investigating officer because of grievous injuries sustained by Sh. Satish Kumar in an accident which took place on 04.12.2010 at about 2.45 p.m regarding which an FIR No. 350/10 with police station Vasant Vihar was registered under Section 279/338 IPC.
2 Brief facts of the accident are that on the date of accident i.e 04.12.2010 at about 2.45 p.m, claimant was going on motorcycle bearing registration no. DL-2SD4697 and when he reached in front of A/9, SPCEL Purvi Marg, Vasant Vihar, New Delhi, in the meantime a Santro Car bearing registration no. DL-9C-H-3603 being driven by its driver in rash and negligent manner hit the victim resultantly causing grievous injuries to claimant thereof.
3 At the time filing of detailed accident report, injured, driver, owner and counsel for insurance company of offending vehicle appeared and it was informed that the statutory report u/s 158 (6) will be treated as claim petition and they can file the reply to the form 54 and thereafter matter was adjourned for filing legal offer. During the course of proceedings a legal offer of Rs. 25,000/- + actual medical expenses was given by insurance company towards full and final settlement arising out of present accident. Driver and owner did not file reply. 4 From the available material on record, the following issues were framed on Suit No. 104/11 Page no.2/11 3 31.03.2012:-
Injury Issues
1. To what amount of compensation, is the claimant entitled, due to grievous injuries suffered owning to negligent driving of vehicle bearing registration no. DL-9C-H-3603 being driven by Ms. Kanika Sibal and owned by S.K Sibbal and insured with New India Assurance Co. Ltd. ?
OPP
2. Relief.
5 In support of his case, petitioner himself stepped into witness box as PW1 and tendered his affidavit - Ex.PW1/A. He relied upon documents viz criminal record filed by IO - Ex. PW1/1 to Ex. PW1/18, original medical treatment and original bills -Ex. PW1/19 to Ex. PW1/28. Mark PW1/29 I-card of college of injured, PW1/30 original fees receipt of injured's college & letter issued by Manav Rachna International University Ex. PW1/31, Copy of diploma in JE of injured is mark as PW1/32.
6 In defence, insurance company did not lead any evidence. 7 I have heard arguments advanced by Ld. counsels for the parties and gone through the material available on record. My issue wise findings are as under :-
Issue No. 18 Herein in the present case, the petitioner/victim while stepping into the witness box as PW1 has narrated the mode and manner of the accident and attributed rashness and negligence on the part of respondent no.1. He was cross-examined by the insurance company and owner of offending vehicle and nothing could be brought on record to impeach his veracity. Moreover, driver of the offending vehicle did not Suit No. 104/11 Page no.3/11 4 come forward to contest or controvert the averments made by the claimant or put his side of version. From un-rebutted oral and documentary evidence, it is established from record that petitioner sustained injuries on account of negligent driving of respondent No.1/driver. Hence, issue no.1 is decided in favour of petitioner.
Issue No. 29 Since issue No.1 has been decided in favour of the petitioner, so he is entitled to compensation as per provisions of the Motor Vehicles Act. 10 The petitioner himself appeared into witness box as PW-1 and deposed that he sustained grievous injuries in accident. He was taken to Holy Angel Hospital and remained there from 04.12.2010 to 07.12.2010 (three days). He was operated and external fixature was applied on his leg and produced discharge card - Ex PW1/19. He further stated that after discharge from aforesaid hospital he remained indoor patient and was adviced to visit hospital time to time for dressing and regular check up and produced treatment record- Ex. PW1/20. Thereafter, he was again admitted in Orthonova Hospital on 22.02.2011 for further treatment and remained uptill 25.02.2011 (three days). During that period surgery was performed and open reduction internal fixation left distal femur with locking compression plate was done on 22.02.2011 and produced discharge summary - Ex. PW1/21. He further submitted that after post operative treatment, he kept on visiting Orthonova Hospital and produced treatment record - Ex. PW1/22 (colly). He further stated that he also visited Holy Angel Hospital periodically and produced OPD cards dated 23.03.2011 and 23.04.2011 - Ex. PW1/23 and Ex. PW1/24. He further stated that during treatment his dressing was done regularly and he has spent Rs. 9,000/- on Suit No. 104/11 Page no.4/11 5 dressing and produced copy of certificate issued by Dr. Abhishek Kumar Mishra - Ex. PW1/25 and Ex. PW1/26. He further stated that a further surgery was required to remove stiffness of left knee and removal of implant after two years for which he has to incur Rs. 2,00,000/- on treatment and in this regard, he produced certificate dated 26.03.2012. The petitioner claimed compensation for amount spent on medicine and treatment, conveyance, attendant charges and other miscellaneous expenses.
11 I have perused the pleadings, notes of evidence and medical treatment record produced by claimant. It is evident from entire medical document that the victim sustained grievous injuries and as far as nature of treatment, surgery and future treatment is concerned, Dr. Abhishek Kumar Mishra was examined by petitioner as witness. He has described the treatment given to petitioner as under:-
"I have operated on the patient Satish S/o Sh. Pale Ram, a case of gap nonunion compound fracture distal femur. The patient has been operated four times so far. Initial surgery was external fixator application. Second surgery was removal of external fixator. Third surgery was definitive fixation of the fracture along with fibular grafting. Fourth surgery was arthroscopy done for stiff knee. Patient might require implant removal in the future. Presently the patient has approximately 30 degrees of range of motion of left knee which is unlikely to increase in future with or without any intervention. First date of admission was 4.12.2010 and was discharged on 07.12.2010. The original discharge summary is Ex.PW1/19. During this period the patient was operated for the first time. There were four hospital admissions required and during each admission patient underwent surgery in Suit No. 104/11 Page no.5/11 6 between patient had to attend OPD's and physiotherapy on regular basis. During the treatment of the patient, the patient was regularly undergoing dressings and I have charged Rs.300/- for 30 dressings each and the certificate in this regard is Ex.PW1/25. The patient might be spending another Rs.40,000/- if implant removal is planned.
The patient has already spent a sum of approximately Rs. 2,00,000 in the first three surgical procedures. The certificate in this regard is given to the patient is Ex.PW1/27. As a consequence of these injuries patient has a permanent restriction in movement of left knee. Patient might not forever indulge in sporting/recreational activities as a result of limited movement at left knee in future. The patient is still undergoing treatment".
12 PW-2 proved the case paper of petitioner such as discharge summary - Ex. PW1/19 and certificate issued regarding expenses claimed on dressing - Ex. PW1/25. He stated that petitioner will have to incur expenditure on removal of implant and the petitioner/injured is still undergoing treatment. 13 From aforesaid testimony of medical expert, it is evident that the petitioner has to undergo surgery in future and still under treatment therefore, he is awarded a lump sum of Rs. 2,00,000/- towards future medical expenses to be incurred in due course of time.
Medical bills 14 The petitioner has filed medical bills amounting to Rs. 2,50,886/- and there is no challenge to these expenses and awarded accordingly being incurred on treatment.
Suit No. 104/11 Page no.6/11 7Loss of income 15 The petitioner stated in his evidence that at the time of accident he was a student and was in third year of Mechanical Engineering from Manav Rachna International University, Faridabad, Haryana but due to this accident he was not able to attend his classes and could not appear for his exam and suffered loss of studies for two years as well as fee of Rs. 58,500/- deposited on 25.02.2010 vide receipt no. 005161. He further claimed that besides this, he used to impart tuition classes to students of class Xth and was earning Rs. 12,000/- per month but due to this accident he could not impart tuition and suffered loss of income for one year. He further stated that due to this accident he was not able to run in future and would face difficulty in getting into defence services. He further claimed that if this accident would not happened then he would have done B-tech in 2012 and would have a job of Rs. 50,000/- per month as an Engineer in any private company but now he would complete his B-tech in 2014 so, he has suffered loss of future income for two years. 16 It was observed in case C.K. Subramonia Iyer v. T. Kunhikuttan Nair, 1970 ACJ 110 (SC) that in assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable and it also held in other cases that the compensation to be granted to the claimants for the injuries or death should be just and reasonable. His Lordship defined the words "just" and "reasonable" in the judgment delivered in case State of Haryana and another vs. Jasbir Kaur and others, JT 2003 (Supp-1) SC 60 : (2003) 7 SCC 484 as under :-
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Suit No. 104/11 Page no.7/11 8 Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind F.A.O. No. 179 of 1990 and others connected matters that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just"
compensation which is the pivotal consideration. Though by use of the expression "
which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non arbitrary, if it is not so it cannot be just."
17 Reverting to back case in hand, on the point of loss of academic year and loss of income, the petitioner was cross-examined by ld. counsel for insurance Suit No. 104/11 Page no.8/11 9 company. In the cross-examination, the petitioner admitted that he got admitted in 2nd year of b- tech programme through lateral entry scheme in Manav Rachna International University Faridabad, Haryana. Suggestion was given that he has not suffered any educational loss, the petitioner admitted that he has not suffered any loss of education for 1st year and also admitted that he has not deposited any other fees in aforesaid university except Rs. 58,500/- after the accident. He also admitted that he has not filed any attendant sheet regarding his presence in B- tech programme. It is gathered from aforesaid testimony that petitioner was enrolled B-tech Mechanical Engineering Course with aforesaid university and was directly got admitted in second year of B-tech programme through lateral entry scheme. No witness has been examined from Manav Rachna International University to prove that claimant has suffered academic loss for two years, therefore, in absence of cogent and convincing evidence the claim taken by petitioner is not accepted. The petitioner has claimed loss of fee of Rs. 58,500/- and it is supported by receipt - Ex. PW1/30 and same is hereby awarded. Further, the petitioner is awarded another sum of Rs. 20,000/- to cover up any loss of studies. So far as, income from tuition is concerned no cogent evidence in the form of documentary evidence has been adduced by claimant so no reliance can be placed upon the submission made by claimant regarding monthly earning of Rs. 12,000/- and rejected.
Special diet, conveyance charges & pain and suffering.
18 There is nothing on record to reveal that petitioner has suffered any disability so nothing is awarded for future loss of income on account of disability.
Suit No. 104/11 Page no.9/11 1019 The petitioner was treated as indoor and outdoor patient in various Hospitals and must have been forced to travel for his treatment. The petitioner has suffered a major injury and considering the fact that such patient require to remain on special diet rich in proteins, therefore, a sum of Rs. 40,000/- are awarded towards special diet and conveyance charges. In the present case, the injury of the petitioner has caused additional trauma, pain and suffering because of his grievous injuries. It would be appropriate if a sum of Rs.50,000/- is awarded towards pain and suffering.
20 The petitioner claimant is thus entitled to following compensation:-
Future medical expenses Rs. 2,00,000/-
Medical expenses Rs. 2,50,886/-
Loss of fees Rs. 58,500/-
Loss of studies Rs. 20,000/-
Special diet & conveyance
charges Rs. 40,000/-
Pain and suffering Rs. 50,000/-
________________
Total Rs. 6,19,386/-
________________
Relief
21 Petitioner is awarded to Rs.6,19,386/- with interest @ 9 % per annum from
the date of filing of DAR i.e. 06.01.2011 till its realization. LIABILITY:-
22 R1 is the driver and R2 is the owner. The injured has sustained injuries on account of negligence of R1. Therefore R1 and R2 are joint tort feasors and jointly and severally liable to pay compensation. R3 is insurer of R2, therefore, R3 is liable Suit No. 104/11 Page no.10/11 11 to indemnify R2 regarding compensation to be payable to the petitioner. 23 Respondent no.3/insurance company is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of petitioner. 24 Insurance company is directed to directly deposit the cheques with SBI Bank, Saket Courts complex branch within 30 days from today and in case of default, penal interest @ 12 % per annum shall be given from the date of filing of delay till deposit of the awarded amount on the account of claimant.
25 On the request of claimant the Bank shall transfer the Saving Account to any other branch of SBI, Saket Court according to his convenience. 26 Claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account in bank.
27 Let for the identification of the petitioner, the first copy of the petition wherein photograph of the petitioner is affixed, be annexed with the award. 28 Award is passed accordingly. File be consigned to record room only after compliance by insurance company by depositing the award in the manner as stated above. Be awaited for compliance for 03.06.2013.
Pronounced in the open court on 03.04.2013 VINEETA GOYAL PO : MACT (SOUTH-01) 03.04.2013 Suit No. 104/11 Page no.11/11