Delhi District Court
Mr. Sudesh Kumar Khurana vs ) Mr. Jai Prakash (Driver) on 30 April, 2015
IN THE COURT OF MS. SUKHVINDER KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT Case no. 10/13/12)
Mr. Sudesh Kumar Khurana
S/o Sh. Puran Chand Khurana
R/o A-26-B, DDA Flat,
12 Block, Tilak Nagar, Delhi.
----Petitioner
Versus
1) Mr. Jai Prakash (driver)
S/o Sh. Sita Ram
R/o RZ-717/314, Gitanjali Park,
West Sagarpur, Delhi.
2) The Delhi Transport Corporation (owner)
through its Depot Manager
Central Workshop-I, B.B. Marg,
Kingsway Camp, Delhi.
3) The United India Insurance Company Ltd. (Insurer)
DO XI, E-85, Himalaya House,
23, K.G. Marg, New Delhi.
........Respondents
Date of institution......10.02.2012
Date of decision........30.04.2012
JUDGMENT:-
1. IO filed the detailed accident report (DAR) in the present case in respect of road accident which occurred on 01.01.2012 at about 2.20 pm at Outer Ring Road near West Enclave Bus Stop for which FIR no. 01/12 under Section 279/337 IPC PS Mangolpuri, Delhi was registered against Jai Prakash, driver of offending vehicle i.e DTC bus bearing Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 1 of 12 registration no. DL1PC 8200. Petitioner has also filed separate claim petition under Section 166 & 140 of the Motor Vehicles Act (hereinafter referred to as 'MV Act'). The case of the petitioner is that on 01.01.2012 at about 2.20 pm when he was in the process of boarding the DTC bus bearing registration no. DL1PC 8200 from west Enclave Bus Stop, Outer Ring Road, Mangolpuri, the driver of the bus negligently without caring the passengers suddenly moved the bus without closing its doors, as a result of which, he fell down on the road and sustained grievous injuries on both of his legs. He was removed to Bhagwan Mahavir Hospital, Delhi where he was treated and his MLC was prepared. The respondents are jointly and severally are liable to pay compensation, hence the present petition claiming compensation of Rs. 27,25,000 along with interest @ 21% per annum has been filed.
2. The claim of petitioner has been contested by all the respondents. In their joint written statement, respondents no. 1 and 2 have pleaded that the offending vehicle was duly insured and respondent no. 1 was holding valid driving licence and valid permit at the time of accident accident. They have denied the other averments of the petitioner and pleaded that accident was caused due to sheer negligence of petitioner who was trying to board the running bus and in the process fell down and suffered injuries.
Respondent no. 3 / insurance company filed detailed reasoned reply / offer of Rs. 62,252 which was not acceptable to the petitioner.
3. On the pleading of the parties following issues were framed by the Ld. Predecessor of the Court for consideration vide order dated 23.03.2012:-
1. Whether Sh. Sudesh Khurana s/o Sh. Puran Chand suffered injuries due to road accident on 01.01.2012 at about 2:20 p.m. at Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 2 of 12 Outer Ring Road, Near West Enclave Bus Stop, Delhi within the jurisdiction of PS: Mangolpuri due to rash and negligent driving of bus bearing No. DL-1PC-8200 being driven by respondent no. 1? OPP
2. Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondents? OPP.
3. Relief.
4. In order to establish his claim, petitioner has filed his evidence by way of affidavit which is tendered as Ex. PW-1/A and proved the documents Ex. PW1/1 to Ex. PW1/7. No evidence has been adduced on behalf of the respondents.
I have perused the record and given thoughtful consideration to the arguments addressed by the ld. counsels for parties. My findings on the issues are as under:
5. ISSUES NO. 1.
PW1 in his testimony has mainly reiterated the contents of his petition. He testified that on 01.01.2012 at about 2.20 pm when he was in the process of boarding the DTC bus bearing registration no. DL1PC 8200 from west Enclave Bus Stop, Outer Ring Road, Mangolpuri, the driver of the bus negligently without caring the passengers suddenly moved the bus without closing its doors, as a result of which, he fell down on the road and sustained grievous injuries on both of his legs. He was removed to Bhagwan Mahavir Hospital, Delhi wherein he was treated. He has not been cross examined by respondents no. 1 and 2. In his cross examination by counsel for insurance company, he categorically denied the suggestion that accident had occurred due to his negligence or that he was trying to board the moving bus. Further, respondent no. 1 has been charge-sheeted u/s 173 CrPC for the Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 3 of 12 offences u/s 279/337 IPC for the accident in question. Respondent no. 1 however opted not the step into the witness box to establish is defence that accident was caused due to negligence of petitioner as he was trying to board the moving bus. Thus, I do not find any reason to disbelieve the testimony of PW1. I rely on the judgments held by the Hon'ble Supreme Court in NKB Brother(P) Ltd. v. M Karumal Ammal AIR 1980 SC 1354 :
"the accident 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 and 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".
Further from the MLC which forms the part of DAR, it is established that injured was removed to Bhagwan Mahavir hospital with the history of road traffic accident and had suffered grievous injuries in the accident. In view of above discussion, the criminal case record and testimony of injured, preponderance of probability is that petitioner had suffered injuries due to road accident which occurred on 01.01.2012 at about 2:20 p.m. at Outer Ring Road, Near West Enclave Bus Stop, Delhi due to rash and negligent driving of bus bearing No. DL-1PC-8200 being driven by respondent no. 1. Thus, Issue no. 1 is decided in favour of petitioner and against the respondents.
6. ISSUE NO. 2.
PAIN AND SUFFERING:
In Vinod Kumar Bitoo Vs. Roshni & Ors. MAC.APP 518/2010 dt. 05.07.12 Hon'ble High Court of Delhi it was held:
Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 4 of 12 "it is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
PW1 testified that after the accident he was removed to Bhagwan Mahvir Hospital where his MLC was prepared. Thereafter, he was referred to Trauma Centre, AIIMS, New Delhi but due to non-availability of bed, he could not be admitted. Therefore, he was admitted in Metro Hospital, Shadipur Depot on the said night. On 02.01.2012 he went to Safdarjung Hospital for further treatment. He was admitted in the hospital on the same day and a fixator was applied on his leg. His skin surgery was also done and he was discharged from the hospital on 11.01.2012. The discharge summary is Ex. PW1/2. He was advised complete bed rest and regular medical check up. On 19.4.2012, operation of his right leg was done and amputation of his fourth toe was conducted as it had become gangreious. He was discharged on the same day and advised bed rest and regular check-up periodically. On 25.06.2012, the external fixator of his leg was removed. On 13.08.2012, he was again admitted in hospital because of non-union of compound fracture left tibia and on 14.08.2012 surgery was conducted on his leg and again external fixator was put on his leg. He was discharged from Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 5 of 12 the hospital on 18.09.2012. Upon his discharge, he was again advised for periodical review. On 13.12.2012, the external fixator which was fixed earlier was removed and his further treatment was done. On 30.05.2013, he was again admitted in the hospital because of non-
union of both bones of the left leg and right ankle stiffness and he was discharged on 07.06.2013 vide discharge summary Ex. PW1/3. Again on 04.07.2013, external fixator was applied and he was advised to get bed rest. Since there was not much improvement in his legs, he went to Sir Ganga Ram Hospital for treatment but could not continue with the treatment because huge amount beyond his capacity was demanded. Therefore, he went to Indian Spinal Injuries Centre, New Delhi and the estimate given by them was also beyond his capacity. Therefore, he went to Sardar Vallabhai Patel Hospital at Patel Nagar where his treatment continued. Later on he went to Sarojini Hospital, Karol Bagh, Delhi where his treatment is still going on. His treatment continued for 21 months. From Ex. PW1/2, it is established that the petitioner had suffered fracture of both bones compound grade-II of the leg along with dis-location. It is also revealed from Ex. PW1/3 and the discharge summary for the period 13.08.2012 to 18.09.2012 that the fracture of both bones of the left leg remained un-united and he was hospitalized time and again due to non-union of both bones of the left leg and stiffness of the ankle and knee. It is also sufficiently established that the petitioner remained hospitalized for about 55 days and from the testimony of PW2 and disability certificate Ex. PW1/6, it is established that the petitioner suffered permanent disability of 71% in relation to his both lower limbs. It is further established from the treatment given to him and OPDs that he remained under treatment for about 21 months. The petitioner must have suffered immense pain and suffering due to Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 6 of 12 long hospitalization and the multiple fractures and the nature of treatment given to him. In view of the nature of injuries suffered by petitioner, the long period of hospitalization and pain suffered by the injured due to disability, and the nature of treatment given to him, I award Rs. 65,000/- to the petitioner towards pain and suffering.
7. MEDICAL EXPENSES:
PW1 testified that he had spent Rs. 78,135/- on his medicines, treatment etc. The treatment papers and medical bills are collectively Ex. PW1/4. The petitioner has also placed on record the list of details of the medicines. Though during course of arguments, Ld counsel for petitioners has also argued that doctor had recommended for special shoe every year, the cost of which is Rs. 12,000/-, there is no evidence on record that the special shoe needs to be replaced every year. As per the tax invoice dated 23.04.2014, Rs. 12000/- has been spent on the purchase of special shoe, however in the absence of any evidence with regard to the life of special shoe, it is assumed that he would need replacement of shoe for nine to ten times during his life time. I also award Rs. 120,,000/- for the special shoe advised by the doctor. Hence, I award Rs. 1,20,000/-+ 78135 = 1,98,135/- towards medical expenses.
8. LOSS OF INCOME PW1 testified that at the time of accident, he was self employed and doing his own business of tours & travels in the name and style of M/s Holy River Holidays and earning Rs. 25,000/- p.m. But due to accident, he could not reach his clients and ultimately he was forced to close the said business resulting in huge losses. He was income tax assesee. During his treatment, he was advised complete bed rest. His treatment was still continuing and thus he could not re-start his business. From the evidence on record, it is sufficiently established that he remained Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 7 of 12 hospitalized from time to time for about 2 months and remained under treatment for about 21 months. Further, from the ITRs which are collectively Ex. PW1/5 it is established that the total income of the petitioner(after deductions) for assessment years 2009-10 and 2010-11 was 1,48,160/- and Rs. 149,340/- respectively. The ITR for the assessment year 2011-12 cannot be considered since it was filed after the accident. Thus the average annual income of the petitioner was Rs. 1,50,000/- or Rs. 12,500/-per month. In view of nature of injuries suffered by petitioner, it is believed that he would not have been able to work at all for a period of 4-5 months. Hence, I award Rs. 62,500/- towards loss of income.
9. LOSS OF EARNING CAPACITY DUE TO DISABILITY.
"No amount of money can restored the lost limb or the experience of pain and suffering due to loss of life. A limb can never be eliminated and ameliorated completely (Hon'ble Apex Court in R.K. Malik & Other Vs. Kiranpal 2009 ACJ 1924). In Arvind Kumar Mishra Vs. New India Insurance Co. Ltd. (2010) 10 SCC 254 Hon'ble High Court observed while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money can do. In Kavita Vs. Deepak & Others Civil Appeal no. 5945/2012 decided on 22.08.12, Hon'ble Supreme Court held that an attempt should always be made to award an adequate compensation not only for physical disability but also for loss of earning and inability to lead a normal life and enjoy usual amenities of life. In Raj Kumar Vs. Ajay Kumar & Others 2011 (1) SCC 342 Hon'ble Supreme Held that compensation on account of earning capacity has to be granted in accordance with the nature of the job of victim of motor accident.
Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 8 of 12 PW1 testified that he was self employed and doing his own business of tours & travels and was earning Rs. 25,000/- but due to accident, he could not approach his client and look after his business and ultimately he was forced to close the said business resulting into heavy loss of Rs. 5,25,000/-. As per disability certificate Ex. PX, the petitioner has suffered permanent disability of 71% in relation to his both lower limbs. As per the own case of petitioner he was self employed and had a business of tours & travels. The nature of job carried out by him is mainly the office job though it also requires visit to clients. In view of the nature of job carried by the petitioner, the permanent disability in relation to his whole body is assessed as 50% of disability in relation to his lower limbs. Thus, the disability in respect of whole body is assessed as 35.5%. As per the matriculation certificate, date of birth of petitioner is 02.04.1971. Thus his age on the date of accident was 41 years. The appropriate multiplier applicable in the case is 14 (Reliance placed on the judgment in Sarla Verma v. DTC 2009 ACJ 1298) Hence, the loss of earning capacity is assessed as 35.5% of 12,500 x 14 x 12 = 7,45,500/-. Hence, I award Rs. 7,45,500/- towards loss of earning capacity.
10.LOSS OF AMENITIES OF LIFE There is sufficient evidence on record to establish that the petitioner remained hospitalized for about 2 months and remained under treatment for 21 months. He has suffered permanent disability with regard to his lower limbs. Thus, he would not have been able to enjoy the general amenities of life at all during the period he remained under treatment. He would also not be able to enjoy many amenities of life in his lifetime due to permanent disability in relation to his both lower limbs. In view of long period of hospitalization and long treatment of Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 9 of 12 petitioner and restricted movement due to his permanent disability, I award Rs. 50,000/- towards loss of amenities of life.
11.ATTENDANT CHARGES PW1 testified that his wife who was doing job in beauty parlor at Janakpuri was forced to leave her job to attend him in hospital as well at home and as such suffered financial loss to the tune of Rs. 1,78,500/-. The petitioner also examined his wife Smt. Jyoti Khurana who supported the testimony of her husband. She testified that she was getting a salary of Rs. 8,500/-p.m as she was working as beautician in La Bellaza Beauty Unisex Salon, B1, Jankapuri, Delhi. Due to the accident of her husband, she was forced to leave her job and to look after him as an attendant for a whole time. There is nobody else in the family to look after him. In her cross examination, she admitted that she has no document to show that she was forced to leave the job. However, in view of nature of injuries suffered by him, judicial notice can be taken on the fact that the petitioner, who had permanent disability in both of his lower limb might have sought assistance of somebody around the clock during the period of his hospitalization and even after that during the period of his treatment for doing his routine activities. It is assumed that he would have sought assistance of an attendant for about 4-5 months. Hence, I award 7358 x 5 = 36,790/- (7358 being the minimum wages of semi skilled work under Minimum Wages Act) towards attendant charges
12.CONVEYANCE AND SPECIAL DIET PW1 testified that during his treatment he was advised for rich high protein diet on which he must have spent Rs. 40,000/- and he must have Rs. 35,000/- on conveyance. He admitted that he had not filed any prescription regarding any special diet. Though there is no Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 10 of 12 documentary evidence for the expenditure incurred on conveyance and special diet however judicial notice can be taken on the fact that in view of nature of injuries suffered by him, the petitioner would have taken the special diet and since there is sufficient evidence to establish that he remained under treatment for about 21 months, he would have spent money for commuting to the hospital. In the facts and circumstances, I award Rs. 35,000/- towards conveyance and special diet.
13.The total compensation is assessed as under:-
1. Pain and suffering Rs. 65,000/-
2. Medical bills + Special shoe Rs. 1,98,135/-
4. Loss of income Rs. 62,500/-
5. Loss of earning capacity due to disability Rs. 7,45,500/-
6. Loss of enjoyment of amenities of life Rs. 50,000/-
7. Attendant charges Rs. 36,790/-
8. Conveyance and special diet Rs. 35,000/-
Total Rs. 11,92,925/-
Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. The insurance company is thus liable to indemnify the insured u/s 147 of MV Act and hence liable to pay the compensation amount.
14. ISSUE NO. 3 RELIEF:
In view of my findings on the above issues no. 1 and 2, I award a compensation of Rs. 11,92,925/- alongwith interest @ 9% per annum w.e.f. filing the DAR i.e. 10.02.2012 in favour of petitioner and against respondents (reliance placed on judgments: New India Assurance Company Ltd. Vs. Budhya Devi & Ors reported in the year 2010 ACJ 2047).
Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 11 of 12
15.APPORTIONMENT Out of the award amount, Rs. 1,00,000/- be released to the petitioner through his saving bank account and remaining amount be kept in the form of FDR in his name in any nationalized bank for a period of 5 years. It is made clear that the FDR shall not be encashed without permission of the court. No loan, advance or ATM facility shall be given on the FDR except with prior permission of court. Insurance company is directed to deposit award amount within 30 days after sending the notice to the petitioner.
Copy of this judgment be given to petitioner and counsel for respondent no.3 /insurance company for compliance.
Announced in open court on 30.04.2015 (SUKHVINDER KAUR) Judge MACT-2 (North) Rohini Courts, Delhi Sudesh Kumar Khurana V. Jai Prakash & Ors MACT no. 10/13/12 12 of 12