Delhi District Court
Smt. Madhu vs Shri Ganesh Nath on 13 January, 2011
1
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ASJ/SPECIAL
JUDGE( NDPS)TIS HAZARI COURTS:(WEST) DELHI
Suit no. 125/10/09
Unique Case ID no : 02401C0504642009
Date of filing of the petition : 03/11/2009
When reserved for judgment : 15/12/2010
Date of Judgment/Award : 13/1/2011
Smt. Madhu
W/o Shri Rajesh Kumar
R/o H. No. 2/271 Agar Nagar ,
Near Chanchal Hospital,
Mubarakpur
New Delhi ...............Petitioner
V E R S U S
1 Shri Ganesh Nath
S/o Shri Girdhari Nath
R/o B - 10 Prem Nagar III
Gauri Shankar Enclave
New Delhi - 110 086
2 Shri Ashok Kumar
S/o Shri Lal
R/o F 145 Rajdhani Park
Suit no. 125/10/09 Pages1 /20
2
Block F, Mundka , New Delhi
3 The New India Assurance Co. Ltd.
B.O 310904 , 2nd Floof, Vandana Building
Tolstoy Marg
New Delhi - 110 001 ................Respondents
JUDGMENT / AWARD
1. In this petition under section 166 & 140 of the Motor Vehicles Act, 1988 hereinafter referred as the Act , the petitioner has claimed compensation of Rs. 25 Lacs for injuries sustained by her in the accident caused by respondent no.1 . It is alleged that on 16.9.2009 at about 8.30 p.m the petitioner was getting down from the bus, at Peeragarhi bus stand , suddenly the driver of the offending vehicle started the bus without ensuring that petitioner has alighted from the bus or not . As a result, the right leg of the petitioner came under the wheel of the offending bus and petitioner has sustained crushed injuries on her leg. The petitioner was removed to Sanjay Gandhi Memorial Hospital and remained admitted in the hospital for treatment from 17.9.2009 to 13.11.2009 and her treatment is still continuing . Due to the said accident , she has also lost her earning Suit no. 125/10/09 Pages2 /20 3 capacity and has suffered permanent disability . At the time of accident, she was working as saleswoman in the shop at Shiv Market , Pitampura, Delhi and was earning Rs 4500/ per month . Due to accident , she could not join her duty and has suffered loss of earning.
2. All the respondents were served and put their appearance Respondent no. 1 and 2 have not filed any written statement.
3. Respondent no. 3 /Insurance company in its written statement has denied their liability to pay compensation stating that there was no accident caused due to fault or negligence on the part of the driver of the offending vehicle. It is however admitted that offending vehicle bearing no. DL1PA 7988 was insured /registered vide policy no. 310904/31/08/00004185 w.e.f 02.3.2009 to 01.3.2010.
4. On 30.8.2010 following issues were framed :
i) Whether petitioner has sustained grievous injuries on 16.9.2009 at about 8.30 p.m at Peera Garhi Chowk, Bus Stand , Delhi due to rash and negligent driving of respondent no.1 while driving offending vehicle Blue Line bus bearing registration no. DL 1PA 7988 ?
ii) Whether petitioner is entitled to any compensation ? If so for what amount and from whom ?
iii) Relief.
Suit no. 125/10/09 Pages3 /20 4
5. Smt. Madhu has been examined as PW1, Dr. Deepika Sethi, MS ENT has been examined as PW2 , Dr. G. C Verma, Specialist Orthopedic Surgeon as PW3. No evidence was led by the respondents.
ISSUE NO.1 Whether petitioner has sustained grievous injuries on 16.9.2009 at about 8.30 p.m at Peera Garhi Chowk, Bus Stand , Delhi due to rash and negligent driving of respondent no.1 while driving offending vehicle Blue Line bus bearing registration no. DL 1PA 7988 ?
6. Petitioner Madhu as PW2 has reiterated the averments of the claim petition. In his testimony vide affidavit Ex. PW1/A , she has deposed that on 16.9.2009 , she alongwith her sister in law Komal was traveling in bus bearing no. DL 1PA 7988 from Saraswati Vihar to Peeragarhi ; at about 8.30 p.m while she was getting down from the offending bus , the driver of the offending vehicle started the bus in rash and negligent manner without ensuring the petitioner has alighted properly or not as a result she fell down on the road and her right leg came under the wheel of the offending bus . Petitioner was removed to the Sanjay Gandhi memorial Hospital in a precarious condition and remained admitted for treatment w.e.f 17.9.2009 to 13.11.2009 . Petitioner was operated upon and skin grafting was done over her right Suit no. 125/10/09 Pages4 /20 5 leg and her right leg knee and ankle have become stiff and has suffered permanent disability.
7. The FIR was registered on the statement of petitioner. It is clearly stated in her statement that accident was caused by offending vehicle bus bearing no. DL1PA 7988 driven by respondent no. 1 in rash and negligent manner and as a result she sustained grievous injuries and was rushed to hospital. Regarding the rash and negligent driving of respondent no. 1, driver , the testimony of PW1 Madhu in that regard is quite natural and coherent. Thus, the testimony of PW1 and documentary evidence on record has sufficiently established that the accident was caused by respondent no.1 while driving the offending vehicle bearing no . DL1PA 7988 in a rash and negligent manner and as a result the claimant / petitioner had sustained grievous injuries. Therefore, issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether petitioner is entitled to any compensation ? If so for what amount and from whom ?
8. The petitioner has claimed Rs. 25 Lacs as compensation for the injuries suffered by her. Let me now assess the compensation to which petitioner is entitled to under different heads. Suit no. 125/10/09 Pages5 /20 6 Compensation for the expenses incurred on medical treatment
9. The petitioner in her affidavit Ex PW1/A has stated that she had spent a sum of Rs. 25,000/ on her treatment and her treatment is still continuing. The petitioner has also proved treatment papers and all medical bills Ex. PW1/2 (collectively) running into 22 pages to the tune of Rs. 8288/ . On perusal of her treatment papers on record , it is found that she had been taking treatment from government hospital wherein various expensive medicines are prescribed and petitioner must have spent sufficient amount on purchasing those medicines and may not have kept bills for the same because she being illiterate lady was not aware enough of her right and claim at that time. The petitioner is therefore, held entitled to a sum of Rs. 20,000/ under this head.
Compensation for the expenses incurred on conveyance expenses, special diet and attendant charges.
10. The petitioner in her affidavit Ex. PW1/A in para no. 5 has deposed that she had spent Rs. 40,000/ on conveyance , special diet and attendant charges. Though, there is no cogent evidence on record for the money spent by petitioner on conveyance, , special diet and attendant charges, however in view of the nature of injuries received Suit no. 125/10/09 Pages6 /20 7 by the petitioner as enumerated by her in his evidence and his treatment papers on record, I am of the opinion that petitioner must have spent some sum under this head. I therefore , assess the petitioner to be entitled for a sum of Rs. 10, 000/ for conveyance charges , Rs. 20,000/ on special diet and Rs. 5000/ on attendant charges respectively. Therefore petitioner is entitled to Rs. 35, 000/ as compensation under this head.
Compensation for loss of income
11. The petitioner in her affidavit Ex. PW1/A has stated that she was employed as saleswoman in a shop at Shiv Market and was earning about Rs. 4500/ per month . She has not placed on record any proof of doing job and employer has not been examined and no salary certificate has been placed on record. . In absence of any cogent evidence in that regard, petitioner has claimed that because of injuries sustained in the accident she has suffered loss of income as she was working as saleswoman and was earning Rs. 4500/ per month. Considering the nature of injuries sustained by her i.e resulting into permanent disability of 90% in relation to his right leg knee and ankle with post traumatic stiffness and permanent total hearing loss , there is every possibility that she would not have been able to do her job / duty to earn livelihood for a period of at least 5 Suit no. 125/10/09 Pages7 /20 8 months . There is no documentary evidence in support of her claim to be working as saleswoman and earning Rs. 4500/ per month and also about her educational / technical qualification if any. Hence, she is entitled to loss of income equivalent to the Minimum wages for a period of 5 months for an unskilled labour . As per Delhi Government notification, the minimum wages at the time of accident was Rs. 3953/ for an unskilled workman. Hence, her total loss of income would be Rs. 19,765/ (3953 X 5) as compensation for loss of income.
Compensation for Pain and Suffering .
12. One cannot over look the fact that injury elicited above sustained by the petitioner resulting into 90% peramanent disabilty due to permanent loss of hearing at this young age of about 24 years, would cause life long pain and suffering to the petitioner It is settled law that no amount of compensation can be adequate for the physical discomfort, mental pain and suffering. The Hon'ble Supreme Court in The Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. reported in AIR 2003 SC 4172, has made the following observations regarding compensation for pain and suffering: "It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merries in West Vs. Shepard (1964 AC 326). Justice requires that it should be equal in value, although not alike in kind Object of providing compensation is to place Suit no. 125/10/09 Pages8 /20 9 the claimant as far as possible in the same position financially as he was before accident."
13. It is thus, difficult to exactly compensate the injured in terms of money for pain and suffering. In the present case, keeping in mind the facts and circumstances of the case and fact that petitioner is suffering from 90% permanent disability, I am of the opinion that a sum of Rs.1,00,000/ as compensation for pain and suffering will be sufficient to meet the ends of justice.
COMPENSATION FOR LOSS OF AMENITIES OF LIFE
14. Petitioner had suffered permanent disability in relation to post traumatic stiffness knee and ankle of right leg and severe hearing loss permanently. Keeping in mind the permanent disability suffered, the restrictions put on enjoyment of her life due to the suffered permanent disability, I am of the opinion that a sum of Rs.1,00,000/ as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
Suit no. 125/10/09 Pages9 /20 10 Compensation for loss of earning capacity on account of permanent disability
15. In the present case , keeping in the mind the facts and circumstances of the case and the fact that the petitioner has suffered 90% permanent disability due to permanent loss of hearing because of injuries sustained in the accident and the disability has been found to be permanent.
16. Let me now asses the compensation to which the petitioner is entitled on the ground of permanent disability of 90% in relation to loss of hearing and other physical injuries.
17. The petitioner has proved her disability certificate Ex. PW2/A showing 90 % permanent disability. It is stated that disability certificate Ex. PW2/A has been proved by Dr. Deepika Sethi who was member of the disability board and has testified that the said disability is permanent and is not likely to improve in future . The doctor has further deposed that hearing loss is total i.e 100% of the patient and in her opinion the total loss of hearing had resulted into 90% physical disability which has been determined as per norms and guidelines issued by Ministry of Health, Government of India. In her cross examination by Ld. counsel for insurance company PW2 Dr. Suit no. 125/10/09 Pages10 /20 11 Deepika Sethi has clarified that this Senosry Neural hearing loss is not recoverable by any medication/ surgery/treatment. The physical disability due to physical injuries on her right leg has resulted into 46% disability (temporary) . As per disability certificate Ex. PW2/A , the petitioner has suffered permanent disability of 90% because of severe hearing loss with post traumatic stiffness knee and ankle .
18. In terms of the law laid in the case of Oriental Insurance Company Ltd. Vs Rajinder Kumar & ors. reported in (III 2007) ACC 19, Hon'ble Mr. Justice Pradeep Nandrajog had held that when the injured a qualified stenographer suffered permanent disability resulting in 44 % functional disability on left arm crushed under bus, there was no infirmity found in the award recompensating loss of future earning due to disability suffered by injured as a result of accident, even though the petitioner had not suffered any cut in salary and was employed with the same employer. Also was held that if as a result of the accident, human anatomy is shattered or a limb is damaged, as far as possible, loss occasioned in terms of money to the victim of the unfortunate road mishap has to be recompensed. Damages have to be full and adequate. In case of personal injuries, the assessment of damages have to take into consideration the restriction of future earning capacity. The loss of chance of better employment or prospects have also to be examined and assessed. The Suit no. 125/10/09 Pages11 /20 12 impairment of the body as a whole has to be considered and its resultant impact on the earning or earning capacity as also future prospects in increasing the earning capacity have to be considered.
19. In the case of S.K. Kattimani Vs. Karnataka State Road Transport Corporation & Others reported as 2007 ACJ 2279 wherein the Hon'ble Apex Court has held in para No.3 and 4 as under:
"After hearing learned counsel for the parties, we find that the High Court committed gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation by treating disability at 50 percent was uncalled for. The tribunal has in fact assessed the disability at 80 percent."
Consequently, we allow his appeal, set aside the order of the High Court and restore the award made by Motor Accidents Claims Tribunal."
20. The Ld. counsel therefore submitted that the petitioner has suffered almost 100% functional disability and needs to be granted compensation for loss of earning capacity accordingly.
21. In the present case , the petitioner has suffered 90% permanent disability due to total loss of hearing permanently . She has also suffered 46% physical disability (temporary) due to other bodily injuries sustained because of the accident. There is no doubt that due to permanent loss of hearing the prospect of earning of livelihood by petitioner has been adversely effected resulting into 100% functional disability of the petitioner in her earning capacity. The case of S.K. Kattimani referred (Supra) perfectly covers the facts of the present Suit no. 125/10/09 Pages12 /20 13 case and the ratio is squarely applicable in the case of the petitioner also.
22. As per law laid down in Patti Ram Vs Kushal Pal Singh reported as 2010 ACJ 1481 by Hon'ble High court of Delhi , in a case of permanent disability in order to assess the loss of earning capacity on the basis of minimum wages , the increase in minimum wages due to inflation and rise in price index has to be taken into consideration. It was also held that court should take judicial notice of increase in minimum wages to meet the increase in price index and inflation rate . It was also held that in various judgments the Hon'ble High court of Delhi has taken the view that the minimum wages get doubled over the period of 10 years and the increase in minimum wages is not akin to future prospects. Thus, Tribunal has to consider future increase in minimum wages while awarding compensation for loss of earning capacity. Benefit of future increase in the income of the injured is to be given. The mean average income of the injured is to be calculated by adding double amount of minimum wages to the prevailing wages and dividing the total sum by 2(Two) . On the same analogy to be applicable in this case, the loss of monthly income of the petitioner due to permanent disability is concluded as under : (Rs.3953 + Rs.7906) divided by 2 Suit no. 125/10/09 Pages13 /20 14 Rs. 11859 / ÷ 2 = Rs. 5,929/
23. In terms of the law laid in the case of Rajinder Kumar (SUPRA) the petitioner is according entitled for loss of earning capacity on account of permanent disability suffered as per multiplier basis. The petitioner has failed to lead any cogent evidence to show that he was earning Rs.4500/ pm from his work/job and therefore she is to be granted loss of earning on the basis of minimum wages prevailing at the time of accident for an untrained workman. According to minimum wages, as per Delhi Government Notification, the monthly income of the petitioner is to be taken as Rs. 3953/ as herein before elicited.
24. In terms of law laid in the case of Smt. Sarla Verma (SUPRA) it was held that in a claim petition u/s 166 of the Motor Vehicles Act, 1988, the multiplier of 18 is to be applied for assessing the compensation for the victim of the road accident ( for the age group of 21 to 25 years ) The age of the petitioner has been shown in Election Voter I Card Ex. PW1/1 is 23 years as on 1.1.2008 . Thus, at the time of accident the petitioner was of age of 24 years. Since the petitioner was of age 24 years as per Election Voter I card Ex. PW1/1 , here also the multiplier of 18 is to be adopted in this case for assessing the compensation for petitioner.
25. In view of the aforesaid , the petitioner has suffered loss of Suit no. 125/10/09 Pages14 /20 15 earning capacity to the tune of Rs. 12,80,664/ (Rs 5929 X 12 X 18 ) as compensation for loss of earning capacity.
COMPENSATION FOR PHYSICAL DISFIGUREMENT DUE TO PERMANENT DISABILITY
26. The petitioner has suffered permanent loss of hearing along with other bodily injury resulting into 90% physical disability vide Ex.PW2/A, resultant from the present accident in question. The physical disfigurement cannot be recompensed in terms of money , till one is alive , one cannot face even oneself to the hard realities that one is not able to hear anything due to physical disfigurement / disability . The Tribunal is enjoined to award just compensation for non pecuniary damages under this head as well. I am of the considered opinion that Rs. 1, 00, 000/ as compensation under this head for the petitioner would be just and petitioner is entitled for the same.
27. In view of the above discussions, the total compensation to which the petitioner Madhu is entitled comes as under : 1 Compensation for the expenses incurred on medical treatment Rs. 20,000/ 2 Compensation for special diet , conveyance and attendant charges Rs. 35,000/ 3 Compensation for loss of income Rs. 19, 765/ Suit no. 125/10/09 Pages15 /20 16 4 Compensation for pain and suffering Rs. 1,00,000/ 5 Compensation for loss of amenities of life Rs. 1,00,000/ 6 Compensation for loss of earning capacity Rs. 12,80,664/ 7 Compensation for physical disfigurement due to permanent disability Rs 1,00,000 / Total Rs. 16, 55, 429/
28. In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner is thus entitled to a sum of Rs.16, 55,429/ as compensation along with interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents , payable by the Insurer i.e respondent no. 3 The New India Assurance Co. Ltd. RELIEF
29. In view of the aforesaid discussions, it is hereby held that petitioner is thus entitled to Rs. 16,55,429/ as compensation alongwith interest @7.5 % per annum from the date of filing of the petition till its realization from the respondents payable by respondent no.3 insurerThe New India Assurance Co. Ltd.
30. Since the amount awarded should not be frittered away by of India in a case titled 'G.M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid Suit no. 125/10/09 Pages16 /20 17 guidelines pronouncing that in a case of compensation, it is appropriate that Tribunals do keep in mind the principles enunciated by this court in 'Union Carbide Corporation Vs. Union of India', 1991 (4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. Guidelines inter alia included of investment of share of the claimants in FDRs in nationalized banks with conditions that bank will not permit any loan or advance on the fixed deposits and interest on the amount invested is paid monthly/periodically directly to the claimant and such investment may be made in more than one fixed deposit. In case of any exigency, claimants are at liberty to apply to Tribunal for withdrawal of such investment.
31. In terms thereof, out of the award sum, 70% sum be invested in 14 FDR's of equal (almost) in name of petitioner in State Bank of India. One FDR be invested for a period of one year; One FDR be invested for a period of two years; One FDR be invested for a period of three years; One FDR be invested for a period of four years; One FDR be invested for a period of five years; One FDR be invested for a period of six years; One FDR be invested for a period of seven years; One FDR be invested for a period of eight years; One FDR be invested for a period of nine years; One FDR be invested for a period of ten years;
Suit no. 125/10/09 Pages17 /20 18 One FDR be invested for a period of eleven years; One FDR be invested for a period of twelve years; One FDR be invested for a period of thirteen years; One FDR be invested for a period of fourteen years The FDRs shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. In case of exigency, petitioner can move application for premature withdrawal before this Tribunal, as per law.
32. Aforesaid fixed deposits are to be made by State Bank of India, Tis Hazari in the following manner: (1) The State Bank of India, Tis Hazari, shall open separate Savings Account in the name of claimant and the entire interest on the aforesaid fixed deposits be credited in the said accounts. The fixed deposits shall be automatically renewed till the period prescribed by the court. (2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. Claimant after due verification and the Bank shall issue photo identity card/pass book with attested photograph to claimant to facilitate his identity. (3) No cheque book be issued to the claimant without the permission of this court.
(4) Half yearly statement of account be filed by the Bank in this court. (5) The original FDRs shall be retained by the Bank in the Safe custody. However, the original pass book shall be given to the Suit no. 125/10/09 Pages18 /20 19 claimant alongwith the photocopy of the FDRs.
(5) The original Fixed Deposit Receipts shall be handed over to the claimant at the end of the fixed deposit period.
(6) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this court.
(8) On the request of the claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India according to the convenience of the claimant
33. In terms of directions contained in case of UOI Vs Nanisiri, in MAC Appeal no. 682/2005 , order dated 13.1.2010 of Hon'ble Mr. Justice J.R Midha, Respondent no. 3 The New India Assurance Co. Ltd. is directed to directly deposit the award sum with State Bank of India (SBI) Tis Hazari within 30 days through its nodal officer , Mr. H.S Rawat, Relationship Manager , Tis Hazari Branch (MB:
09717044322) and the Manager concerned of SBI, Tis Hazari Court to release the balance amount by transferring the same to the Saving Bank Account of the petitioner /claimant. Insurance company to also file proof of deposit of award sum, also within said period , Manager SBI, Tis Hazari to also furnish compliance report within said period , Manager SBI, Tis Hazari to also furnish compliance report within 15 days of deposit of award sum. Claimant to do the necessary formalities Suit no. 125/10/09 Pages19 /20 20 in respect of the bank account(s). Nazir to keep the copy of Award in a miscellaneous file for awaiting compliance report from all concerned, which is to be put up on 15.2.2011. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 13th day of January , 2011 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) (WEST)DELHI Suit no. 125/10/09 Pages20 /20