Delhi District Court
Sh. Suman Jee Jha vs ) Sh. Ablu Hasan S/O Sh. Mir Hasan ... on 8 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT No. 37/11/09)
Sh. Suman Jee Jha
S/o Sh. Ramesh Chander Jha
R/o. H. No. 1896, H Block
Near Park, Jahangirpuri, Delhi. ------- Petitioner
Versus
1) Sh. Ablu Hasan S/o Sh. Mir Hasan (Driver)
R/o Lilona Kheri, P.S. Shamli, Distt. Mujaffar
Nagar, U.P.
2) Sh. Anil Kumar Singal S/o Sh. Sadi Ram Singal (Owner)
R/o Hanuman Road, Arya Puri, Shamli,
Distt. Mujaffar Nagar, U.P.
Second Address:
Gali No.4, Ashok Nagar, Karnal, Haryana.
3) Reliance General Insurance Co. (Insurance Co.)
Reliance Insurance House, Panchdara, Saraffa Bazar
Mujaffar Nagar, U.P. ------Respondents
Date of institution----19.03.2009
Date of decision------08.05.2012
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
********************************
JUDGMENT:-
Petitioner Suman Jee Jha aged about 39 years through the present petition claimed compensation of Rs. 25,00,000/- alongwith interest @ 18% p.a. on the ground that on 05.11.2008, he alongwith his friend 2 Ramakant Jha was going from Alipur to Siraspur, Delhi by Mahindra Champion bearing No. DL-1LL-0693 for service of the aforesaid vehicle. At about 2.35 pm, when the petitioner reached at GTK Road, Near Sai Mandir, Alipur, Delhi then the offending vehicle Mahindra Pick bearing no. HR-45-8647 being driven by its driver, in rash and negligent manner without obeying traffic norms came from behind and hit Mahindra Champion from behind. As a result of which the said Mahindra Champion fell down/turned down and the petitioner came under the Mahindra Champion and received grievous injuries. He was admitted in BJRM Hospital on 06.11.2008 and thereafter he was referred to AIIMS on 06.11.2008 and discharged from the said hospital on 12.11.2008. The petitioner also treated himself privately. It is further stated that his left hand amputated and he received grievous injuries on his left leg, head injury, shoulder, left eye and other injuries as per MLC and other medical record. Petitioner alleged that at the time of accident he was self employed and was drive the Mahindra Champion and from his work he earns Rs. 20,000/- per month, but after the accident he is unable to drive the vehicle and now he is fully depend upon his relatives as his right hand was amputated and he is become permanently disabled. He spent about Rs. 80,000/- on his treatment till date and his treatment is still going on. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No. 304/2008 in police station Alipur, Delhi. He claimed compensation from the respondents being driver, owner and insurance company of offending vehicle under various pecuniary and non pecuniary heads.
Initially in the present petition driver and insurance company were not made a party, but subsequently the driver and insurance company were impleaded as respondent no. 1 & 3 respectively on 04.08.2010 on an application moved under order 1 Rule 10 read with section 151 IPC and counsel for petitioner filed amended memo of parties.
3Respondent no. 1 & 2 filed joint written statement and denied all the allegations of the petitioner regarding driving of vehicle in rash and negligent manner by its driver. It is stated that the alleged accident has neither been caused by the respondent no. 1 nor by the vehicle of the respondent no. 2 has been falsely implicated in this case. It is further stated that the alleged accident has been caused due to own negligence of the petitioner who was driver of vehicle Mahindra Champion as he has lost the balance of his own vehicle. Respondents no. 3 insurance company in its written statement admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds.
Petitioner during pendency of the case was paid interim compensation of Rs. 25,000/- alongwith interest u/s 140 of Motor Vehicles Act on account of no fault liability.
On perusal of the file, it is revealed that in this case inadvertently issues were not be framed as when the case was fixed for framing of issues, then the case was sent to the Lok Adalat for settlement and when the case was not settled in Lok Adalat, then inadvertently the same was fixed for petitioner's evidence and issues could not be framed. Now on the basis of pleadings of the parties, following issues are being framed:
1). Whether Sh. Suman Jee Jha suffered injuries due to road accident on 05.11.2008 at about 2.35 p.m. at GTK Road, Near Sai Mandir, Alipur, Delhi within the jurisdiction of P.S. Alipur, Delhi due to rash and negligent driving of vehicle No. HR-45-8647 being driven by respondent no.1 ? OPP 4
2). Whether the petitioner is entitled to compensation, if so to what an extent and from which of the respondent? OPP
3). Relief.
Petitioner in support of his case examined himself as PW-1 and Dr. Nirankar Singh as PW-2. No evidence was led on behalf of the respondents. Petitioner in his affidavit in evidence Ex. PW1/A reiterated the facts as stated in the claim petition. He further stated that he has received permanent and become handicapped from his right hand and suffered 70% permanent disability. Still he has problem in his eyes for which his treatment is going on with Attar Sain Jain Netra Hospital, New Delhi. He is required the artificial limb and the cost of the same is Rs. 1,00,000/- but due to paucity of fund, he is unable to purchase the same. He proved the discharge slip and prescription slip as collectively Ex.PW1/1 (running into 8 pages), original bills of Rs. 8,521/- as collectively Ex.PW1/2 (running into 15 pages), copy of his driving licence Ex.PW1/3 (OSR), bank statement Ex.PW1/4 (running into 3 pages), election identity card as Ex.PW1/5, copy of criminal case record as Ex.PW1/6 (43 pages) and disability certificate as Ex.PW1/7. Nothing incriminating has come out in the cross examination of PW-1. He stated that the deceasaed was taken out from underneath vehicle by Ramakant Jha and other on lookers. His vehicle was in motion when the accident took place. The accident took place with the offending vehicle Mahindra Pick Up number of which was noted by Ramakant Jha which was sitting next to him. On being asked by the court, the witness PW-1 stated that he cannot drive the vehicle because of amputation of his right hand from in between. He denied the suggestion that he had not sold the vehicle and that he was getting it driven by some other driver.
Petitioner also examined Dr. Nirankar Singh, Orthopedic Surgeon, Dr. Baba Saheb Ambedkar Hospital, Delhi. He in his evidence 5 stated that the injured suffered 70% permanent physical disability and the position is not likely to improve. He proved the original disability certificate as Ex.PW1/7.
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:
"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.
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 6 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".
Petitioner PW-1 in his affidavit in evidence disclosed how and in which manner the accident took place and entirely blamed driver of offending vehicle Mahindra Pick in causing the accident in question rashly and negligently and hit him. Nothing material has been put regarding the manner of accident in the cross examination of PW-1. Version of the petitioner regarding accident has remained unrebutted and unchallenged and I find no ground to disbelieve him in this regard. There is nothing on record to point out that there was any negligence on the part of the petitioner. Investigating officer of the criminal case after investigation found that the accident took place due to rash and negligent driving of the offending Mahindra Pick by respondent no. 1. Copy of criminal case record filed by the petitioner is on record which confirms the deposition of PW-1. Respondents no. 1 and 2 did not cross examine the petitioner effectively which draws an adverse inference against them and leads to the conclusion that version of the petitioner regarding the manner of accident is correct.
Respondents no. 1 & 2 did not step into the witness box to prove his alleged defence of happening of accident due to negligence of the petitioner as stated in their written statement. Twisting of facts further draw an adverse inference against the respondents that they are infact trying to mislead the court by taking contradictory stands.
7It is not the case of the respondents that they had lodged any complaint to any higher authority against alleged false implication of respondent no. 1 in criminal case or wrongful seizure of their vehicle. It is also not their case that they had any previous enmity with the petitioner or IO or knew them prior to the date of accident, so possibility of false implication of respondent no. 1 in criminal case is also ruled out. Accordingly, I find no ground to disbelieve the statement of PW-1 and it is held that accident had taken place due to rash and negligent driving of offending Mahindra Pick by respondent no. 1 by which petitioner had suffered injuries and there was no negligence on the part of the petitioner in driving the Mahindra Champion. This issue is thus decided in favour of petitioner and against the respondents.
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:
"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 8 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) 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 9 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 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 10 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, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, 11 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) I) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. II) 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)
12
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:
"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, 13 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 by 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 14 period 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 stated that his left hand amputated and he received grievous injuries on his left leg, head injury, shoulder, left eye and other injuries as per MLC and other medical record. He was admitted in BJRM Hospital on 06.11.2008 and thereafter he was referred to AIIMS on 06.11.2008 and discharged from the said hospital on 12.11.2008. The petitioner also treated himself privately. He further stated that after discharge from JPN Apex Trauma Centre, AIIMS, he remained outdoor patient and he also treated in Attar Sain Jain Eye Hospital, New Delhi. He has received permanent and become handicapped from his right hand and suffered 70% permanent disability. Still he has problem in his eyes for which his treatment is going on with Attar Sain Jain Netra Hospital, New Delhi. He is required the artificial limb and the cost of the same is Rs. 1,00,000/- but due to paucity of fund, he is unable to purchase the same. He proved the discharge slip and prescription slip as collectively Ex.PW1/1 (running into 8 pages) and original bills as Ex.PW1/2 (running into 15 pages) and copy of his driving licence Ex.PW1/3 (OSR). After the accident he is unable to drive the vehicle and now he is fully depend upon his relatives as his right hand was amputated and he is become permanently disabled. He spent about Rs. 80,000/- on his treatment till date and his treatment is still going on. Dr. Nirankar Singh, Orthopedic Surgeon, Dr. Baba Saheb Ambedkar Hospital, Delhi in his evidence stated that the medical board constituted by Baba Saheb Ambedkar Hospital examined the petitioner Suman Ji Jha. On being asked by the court, the said doctor stated the on the basis of examination of record and physical 15 examination carried out by the board, the injured suffered 70% permanent physical disability and the position is not likely to improve.
As per the case of injured/petitioner, his left hand amputated and he received grievous injuries on his left leg, head injury, shoulder, left eye and other injuries as per MLC and other medical record. It is stated that due to the injuries sustained in the said accident, the petitioner become permanently crippled and unable to do his daily personal routine work. He is no more able to lead his life as a normal human being and finds difficult even to perform his daily personal routine and is unable to enjoy even the small amenities of life and in that very nature of the things the functional disability is 100% more than 70% physical disability. Counsel for the petitioner has cited judgment passed by Hon'ble Delhi High Court titled as Mohd. Firoz Vs. Roshan Lal, App 67/2007 decided on 1.6.2011 and argued that the disability is to be taken as 100 per cent.
Permanent disability is treated as akin to the death in relation to the loss of earning capacity but it would depend upon the extent of disability. In view of the above judgment of Hon'ble Supreme Court in such cases, the permanent disability as determined by the medical board is to be used.
It is the claim of the petitioner that at the time of accident he was about 39 years of age and was self employed and was owner of Mahindra Champion bearing no. DL-1LL-0693 and was earning his livelihood by driving the said vehicle and from which he was earning Rs. 20,000/- per month. The said vehicle was financed with "M & M Finance Service Ltd.", but after the accident he is unable to drive the vehicle and sold the said vehicle as he could not able to pay EMI of that vehicle and due to 16 permanent disability he is unemployed and got 70% permanent disability which amounts to complete functional disability of 100% permanent disability as the petitioner would not be in a position to work that he used to work as driver. His job profile has also been hampered/affected badly due to this accident. Now he cannot be in a position to drive vehicles. The life of the petitioner has become hell. The income of petitioner has also affected and he has become permanently crippled person and no more able to able his livelihood and would not be able to live a normal life due to amputation of his right arm and most likely he would be entirely dependent upon his family members. Hence, I take the disability to 90% functional disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC under the facts & circumstances of the case.
Petitioner in the petition described his age as 39 years on the date of accident. As per his driving licence his date of birth was 05.04.1970, so he was approximately 38½ years of age as per his driving licence, so in view of decision of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC 2009 ACJ 1298, multiplier of 15 has to be applied to count loss of earning capacity.
Petitioner alleged that at the time of accident was he self employed and was owner of Mahindra Champion bearing no. DL-1LL-0693 and was earning his livelihood by driving the said vehicle and from which he was earning Rs. 20,000/- per month, but he has not proved his income nor produced any witness in this regard. In absence of any documentary evidence in this regard, petitioner has to be treated as a worker falling in skilled category according to the schedule of minimum wages and presumed to be earning a sum of Rs. 4,107/- per month. Accordingly this amount of Rs. 4,107/- per month has to be taken into consideration to assess the amount of compensation.
17Petitioner was admitted in BJRM Hospital on 06.11.2008 and thereafter he was referred to AIIMS on 06.11.2008 and discharged from the said hospital on 12.11.2008. Thereafter he continuously visited the hospital as OPD patient. His treatment continued and he is under continuous treatment. At the time of accident he was self employed and was owner of Mahindra Champion bearing no. DL-1LL-0693 and was earning his livelihood by driving the said vehicle and was earning Rs. 20,000/- per month. The said vehicle was financed with "M & M Finance Service Ltd.", but after the accident he is unable to drive the vehicle and sold the said vehicle as he could not able to pay EMI of that vehicle and due to permanent disability he is unemployed. He cannot drive the vehicle because of amputation of his right hand from in between. He was the only earning member of his family which consists of his wife, four children and himself. In such situation, I am of the view that petitioner is required to be reimbursed the amount towards loss of income for six months only at Rs. 24,642/- (Rs.4,107 x 6 months).
Petitioner has alleged that he had incurred Rs. 50,000/- on his medical treatment, but the petitioner has placed on record the medical bills worth Rs. 8,521/- only which are corroborated by the medical prescriptions and treatment record. No dispute regarding the correctness and genuineness of these bills is raised so the petitioner is thus entitled to recover the amount of Rs. 8,521/- towards medical expenses.
The petitioner was not having any permanent job and was only a driver by profession. He was aged about 38½ years at the time of accident. Hon'ble Delhi High Court in Sajha Vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. Vs. Raja Ram MAC. APP. No. 175/06 decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages from time to time and rises in price 18 index and inflation, it can be said that minimum wages would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also. Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs. 6160.5 paisa (4,107 + 50%).
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla Vs. Gopal MAC. APP No. 1028/2006 decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. 9,98,001/- as per the formula (6160.5 X 12 X 15 X 90%). Accordingly petitioner is granted loss of future income at Rs. 9,98,001/-.
Petitioner in his evidence stated that he incurred a sum of Rs. 30,000/- towards special diet and Rs. 10,000/- on conveyance. Medical record shows that petitioner had visited number of times to hospital as OPD patient and remain admitted in AIIMS on 06.11.2008 and discharged on 12.11.2008 i.e. approximately for 7 days and thereafter his treatment continued, though no proof of spending upon any conveyance is brought on record. Injured must have spent some amount on extensive visits to the hospitals during that period. In case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Hence in absence of any evidence and documentary evidence, I am of the view that maximum petitioner can be paid Rs. 15,000/- towards special diet and Rs. 15,000/- towards conveyance charges.
Petitioner during his evidence stated that he is required the artificial limb and the cost of the same is Rs. 1,00,000/- but due to paucity of fund, he is unable to purchase the same. But no evidence is brought on 19 record that petitioner requires any further treatment in future. Judicial notice can be taken of the fact that due to such type of injuries and disability as is suffered by the petitioner, now he cannot be in a position to drive vehicles. The life of the petitioner has become hell. The income of petitioner has also affected and he has become permanently crippled person and no more able to able his livelihood and would not be able to live a normal life and most likely he would be entirely dependent upon his family members. Difficulty and inconvenience arises to perform even daily personal routine acts due to this disability. Hence I award a sum of Rs. 2,00,000/- towards future treatment expenses for installation of artificial limb.
Non-pecuniary damages (General damages):
Hon'ble Supreme Court in case Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 held that, it is not possible for suffering and trauma caused due to the shortening of hand was meager. It is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is shortened 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 petitioner was of the age of 38½ years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Now he cannot be in a position to drive vehicles. Therefore, in my considered view following the above said judgment, I award a sum of Rs. 1,00,000/- in lieu of pain, suffering and trauma caused due to the shortening of right hand as per the judgment of Govind Yadav.20
It can only be a matter of imagination as to how the injured will have to live for the rest of life with one short hand. The injured can be expected to live for at least 50 years. The petitioner stated in his evidence that due to the injuries sustained in the said accident, he has become permanently crippled and is no more able to drive vehicles. During this period he will not be able to live like normal human being and will not be able to enjoy the life. Hence, I award him a sum of Rs. 2,00,000/- for the loss of amenities, loss of enjoyment of life and shortening of life as per the judgment of Govind Yadav.
Respondent no. 3 insurance company could not bring on record any evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount to the petitioner.
In view of the above discussions this issue is decided in favour of petitioner and against the respondents by holding that he is entitled to get the following compensation from the respondent No. 3:-
Pecuniary damages (Special damages):
1. Loss of income -----------------------------------------Rs. 24,642/-
2. Medical expenses -------------------------------------Rs. 8,521/-
3. Loss of future income etc.---------------------------Rs. 9,98,001/-
4. Special diet ----------------------------------------------Rs. 15,000/-
5. Conveyance charges --------------------------------- Rs. 15,000/-
6. Future treatment medical expenses--------------Rs. 2,00,000/-
Non-pecuniary damages (General damages):
217. Pain, suffering & trauma and------------------------Rs. 1,00,000/-
8. Loss of amenities, enjoyment of life, etc.------- Rs. 2,00,000/-
-----------------------------
Total Rs. 15,61,164/-
Since petitioner has already received interim compensation of Rs. 25,000/-, so the balance amount left payable is Rs. 15,11,164/-. Petitioner shall be entitled to interest at the rate of 9% p.a. on this amount from the date of institution of the petition i.e. 19.03.2009 till realization, as per the judgment titled as New India Assurance Co. Ltd. vs. Bhudhia Devi & others, 2010 ACJ 2045.
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. 15,11,164/- to the petitioner with interest at the rate of 9% p.a. from 19.03.2009 till the compensation amount is fully paid.
It is further ordered that out of the compensation amount, 50% amount alongwith accrued interest be deposited in the form of FDR for a initial period of five years in the name of petitioner to be renewed from time to time with liberty to withdraw monthly interest through saving bank account. 25% of the total compensation amount alongwith accrued interest be deposited in the form of FDR for three years with liberty to withdraw monthly interest through saving bank account. It is further ordered that a sum of Rs. 3,00,000/- be deposited in the name of the Tribunal for future medical expenses to be incurred for installation of artificial arm, in FDR to be released to the hospital concerned directly from which artificial arm is purchased or is to be installed. Petitioner to give notice of admission in 22 such Institute or hospital to this Tribunal. Thereafter a certificate be issued to the Institute/Hospital concerned that the amount to the extent of Rs. 3,00,000/- plus accrued interest will be borne by the petitioner for installation of artificial arm from time to time and the cost of said artificial arm beyond this amount can be borne by the petitioner himself. Remaining amount alongwith accrued interest be deposited in the saving bank account of the petitioner with liberty to withdraw Rs. 7,000/- p.m. towards household expenses till the amount is exhausted. These FDRs be got prepared from State Bank of India, Rohini Courts, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these FDRs. Respondent no. 3 Insurance company to pay further sum of Rs. 50,000/- as counsel fee and Rs. 5,000/- as out of pocket expenses to counsel for petitioner Sh. Ram Kumar Prabhakar, Adv., Enrollment no. D-381/98 by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha titled as Sat Prakash vs. Jagdish, II (2010) ACC 194.
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioner and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K.MALHOTRA)
Court on 08.05.2012 JUDGE, MACT (OUTER-II)
DELHI