Delhi District Court
Smt. Prabha Yadav vs Smt. Surjit Kaur W/O Sh. Tejpal Singh on 21 January, 2010
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IN THE COURT OF SHRI GURVINDER PAL SINGH
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL(WEST)
TIS HAZARI COURTS,DELHI
Suit No. 34/09
Smt. Prabha Yadav
w/o Sh. Satbir Singh
R/o RZ-56, Gali No.9,
Pankha Road, Mohan Nagar,
New Delhi-110046.
........PETITIONER
VERSUS
1. Smt. Surjit Kaur w/o Sh. Tejpal Singh
R/o Flat No. C-165, 3rd Floor,
Hari Nagar, Ghanta Ghar,
New Delhi. (driver-cum-owner)
2. National Insurance Co. Ltd.
Jeevan Vikash Building,
30-31-A, Asaf Ali Road,
New Delhi-110002 (Insurer)
.........RESPONDENTS
Date of filing of the petition : 12/12/07
When reserved for judgment : 07/01/10
Date of final judgment/ award : 21/01/10
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JUDGMENT / AWARD
Petitioner has claimed Rs. 15,00,000/- (Rupees Fifteen Lakhs) as compensation vide claim petition u/s 166/140 Motor Vehicles Act, for grievous injuries sustained on 05/02/07 at about 5.30 p.m near Red Light, Nangal Raya Flyover, Nangal Raya, Delhi, while going to Base Hospital, Delhi Cant to see her admitted neighbour when while crossing the road, a Maruti Baleno car bearing registration No. DL-3CM-8600 , driven by respondent No.1 in a rash and negligent manner at high speed struck her after jumping the red light. Consequently petitioner suffered permanent disability.
2. Respondents were served with the summons.
3. Respondents No.1, is the driver-cum-owner and respondent No.2 is the insurer of the offending vehicle.
4. Both respondents filed the written statements and denied the claim of the petitioner.
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5. Respondent No.2, insurer has however, admitted the fact that vehicle i.e. Maruti Baleno Car No. DL-3CM-8600 was insured with it vide Policy No. 350304/31/06/6100003039 from 03/07/06 to 02/07/07.
6. Vide order dated 15/07/08, following issues were framed by my Ld. Predecessor.
1. Whether the petitioner sustained injuries on her person in the road accident on 05.02.2007 by the vehicle no. DL-3CM-
8600(Maruti Baleno) was being driven by R-1 in a rash and negligent manner being the owner also and the vehicle was insured with respondent No.2? OPP
2. Whether the petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
7. Petitioner as PW-1 ; Dr. Vineet Kumar Arora as PW-2 are the examined petitioner witnesses.
8. No respondent evidence was led despite opportunity. 4
9. I have heard Ld. Counsels for the parties, perused the record and given my thoughts to the rival contentions put forth. My issue wise findings are as under:-
ISSUE NO.1
10. Petitioner as PW-1 reiterated the averments of the claim petition. She testified that on the fateful evening, she was going with her neighbour Smt. Kailash to Base Hospital to see one of other neighbour admitted there. When they reached at near red light, Nangal Rai Flyover, Delhi, while they were crossing the road, Maruti Baleno Car No. DL-3CM- 8600, driven by respondent No.1 at high speed in rash and negligent manner, came from Lajwanti Flyover side after jumping the red light and hit her and Smt. Kailash with great force. The petitioner and Smt. Kailash were removed to DDU Hospital. Petitioner sustained grievous injuries and consequently permanent disability in relation to right upper limb and left lower limb.
11. Neither respondent No.1 has entered into the witness box to testify in contrary to the version of PW-1 nor there is any evidence on record 5 to disbelieve or discredit PW-1 in toto or in particular.
12. The version of PW-1 is lent corroboration by the version emanating from the certified copy of the charge-sheet, Ex. PW1/3(colly.) of case FIR No. 51/07, u/s 279/337/304-A IPC, P.S. Maya Puri, in terms of which the investigating agency opined that the respondent No.1 had committed the said offences and was responsible for the grievous injuries on the person of petitioner caused by his rash and negligent driving.
13. A driver behind wheels of a mechanically propelled vehicle is under bounden duty to observe necessary caution for avoiding striking other vehicles, persons, the users of the road ahead. Having failed to observe such bounden duty and having struck the petitioner causing her grievous injuries on her person, respondent No.1 was berserk locomotion and thus negligent.
14. In view of the above discussion, I am of the considered opinion that petitioner has been able to prove that she sustained grievous injuries 6 due to rash and negligent driving of respondent no.1. Issue No.1 is decided in favour of the petitioner and against the respondents. ISSUE NO.2
15. The petitioner has claimed Rs 15,00,000/- as compensation for the sustained grievous injuries and disability suffered by her. Let me now assess the compensation to which the petitioner is entitled to under different heads?
Compensation for the expenses incurred on medical treatment.
16. The petitioner has placed on record the medical bills amongst Ex. PW1/4 (colly). Total of these bills comes to Rs. 9,202/-(Totalling done by Sh. Kulbhushan Khurana, Civil Nazir as per directions). The petitioner is, therefore, entitled to sum of Rs. 9,202/- as compensation for her medical expenses.
Compensation for conveyance
17. As per the copy of MLC of petitioner of DDU Hospital, petitioner had suffered fracture both bones (left leg); fracture Oleceranon (Rt); fracture of neck of right femur. As per discharge summary of Base Hospital, the petitioner was admitted there on 07/02/07 till 11/04/07 having suffered head 7 injury; fracture pelvis; fracture acetabulum (Lt); fracture neck humerus(Rt); fracture Olecranon; fracture shaft tibia (Lt); wound debridement + External fixator was applied; lower femoral skeletal fraction was done on 07/02/07; ORIF + KUR + fixator for fracture proximal humerus right was done on 22/02/07; ORIF PHLP for fracture humerus was done on 05/03/07. ORIF TBW for fracture Olecranon was done on 22/03/07. Petitioner was also referred to ECHS empanelled Hospital for orthopaedic management of fracture of shaft of left tibia.
18. Also on record, the petitioner has placed the discharge summary of Orthonova Hospital where she was admitted on 12/04/07 to 15/04/07 for non union of fracture of both bone left leg; unable to walk; there open reduction internal fixation with bone grafting and inter nailing was done under spinal anesthesia. Petitioner was also advised by the doctor on 12/06/07 to walk with support. Petitioner wad advised on 11/10/07 by the doctor to walk with stick. Petitioner was advised on 14/04/08 by the doctor that her fracture was united.
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19. Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, excepting the stated ambulance charges, yet considering the nature of injuries suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- including the ambulance charges for expenses incurred on conveyance.
Compensation for special diet.
20. Though there is no cogent evidence on record for the money spent by the petitioner for special diet, yet considering the nature of injuries suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on special diet.
Compensation for attendant charges
21. Though there is no cogent evidence on record for the money 9 spent by the petitioner for attendant charges, yet considering the nature of injuries suffered by the petitioner elicited above, treatment papers of petitioner on record and hospitalization of the petitioner, I am of the considered opinion that petitioner must have spent some sum under this head. Petitioner is accordingly held entitled for sum of Rs. 10,000/- for expenses incurred on attendant charges.
Compensation for loss ofincome
22. As per the claim petition and deposition of PW-1, the petitioner was working as beautician, earning monthly income of Rs. 6000/- per month.
23. The petitioner has not placed on record any document of her being fully trained as a beautician nor examined any employer nor led any evidence for working as such. In absence of any cogent evidence, documentary or otherwise, to establish the earnings of the injured, the monthly income of the injured is determined on the basis of the minimum wages notified under the Minimum Wages Act by the Delhi Government in the category of semi -skilled person, which was Rs. 3636/- on the day of 10 accident. As the petitioner has suffered grievous injuries herein above said, it can be presumed that she could not have done her work for about six months. The petitioner is therefore entitled to Rs. 21,816/-( Rs. 3636/-x
6) as compensation for loss of income.
Compensation for loss of earning capacity
24. PW-1 testified that at the time of accident, apart from doing her household work, she was working as a beautician and on account of suffered injuries in the accident, she was unable to do such work.
25. PW-2 Sh. Vineet Kumar Arora, Junior Specialist (Orthopedics), DDU Hospital testified that being the member of the Medical Board, he had examined the petitioner and issued disability certificate,copy Ex. PW2/A. PW-2 stated that he with other members of the Medical Board had assessed the permanent disability of petitioner as25% in relation to right upper limb, and left lower limb, it being a case of Post Traumatic stiffness of right shoulder and left knee and ankle. In opinion of PW-2, the petitioner would suffer the functional disability also to the extent of 25% while such 11 disability was not likely to improve or recover.
26. In absence of any cogent evidence on record regarding the monthly earnings of the petitioner and her skill or her working as beautician, whether independently or otherwise, the monthly earnings of the petitioner are taken as per the minimum wage of semi-skilled workman as notified by Delhi Government as abovesaid, which was Rs. 3636/- as on the date of accident.
27. As per ECHS Card, Ex. PW1/2, the date of birth of petitioner was 13/04/1969, in terms thereof, the petitioner was of age nearly 38 years as on the date of accident.
28. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
29. It is now well settled that while estimating future loss of income, 12 the Court has to take into account future prospects of the injured. [ See (1) K. Narsimha Murthi V. The Manager, Oriental Insurance Co. Ltd. & Anr.,reported in 2004 ACJ 1109; (2)Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal, reported in III(2007)ACC 676 and (3) Santosha Devi Vs. Abdul Kareem & Ors, in MAC Appeal No. 440/09 decided on 08/10/09 by Hon'ble Mr. Justice J.R. Midha]
30. Thus, Tribunal has to consider future increase in minimum wage while awarding compensation qua loss of earning capacity of injured.
31. Benefit of future increase in the income of the petitioner/ injured is to be given. Thus mean average income of the injured is determined as Rs. 5454/- per month [{minimum wage+ double the minimum wage} divided by 2] for purpose of computation of compensation in this case.
32. The petitioner engaged in the work of beautician, suffered stiffness of right shoulder and left knee and ankle. Accordingly, she suffered such disability which would seriously hamper her earning capacity in doing 13 work of beautician, since she needs to stand, walk, move her limbs during the course of such work of beautician. The petitioner would also be facing extreme difficulty in climbing stairs and in free movement. As per law laid in the case of Vijay Kumar Mittal (supra), in the back drop of the above elicited testimony of PW-2 Doctor, I am also of the opinion that the petitioner would be suffering the loss in the earning capacity also to the extent of 25%.
33. In terms of law laid in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation & Anr, reported in III (2009) ACC 708 (SC), it was held that in a claim petition u/s 166 of the Motor Vehicles Act, 1988, the multiplier of 15 is to be applied for assessing the compensation for the victim of the road accident(for the age group of 36 to 40 years). Since the petitioner was of age 38 years as on the date of accident, here also the multiplier of 15 is to be adopted in this case for assessing the compensation for petitioner.
34. In view of the aforesaid, the petitioner has suffered loss of earning capacity to the tune of Rs. 2,45,430/-( 25% of Rs. 5454/- X 14 12X15).
Compensation for pain and suffering
35. One cannot over look the fact that realigned bones would cause life long pain to the petitioner during winter and rainy season. It is settled law that no amount of compensation can be adequate for the physical dis- comfort, 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 the claimant as far as possible in the same position financially as he was before accident."
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 permanent disability, I am of the opinion that a sum of Rs. 50,000/- as compensation for 15 pain and suffering will be sufficient to meet the ends of justice.
Compensation for loss of amenities of life
36. Petitioner had suffered stiffness of right shoulder, left knee and ankle. She can only walk slowly, cannot run . The other activities the petitioner can perform slowly though independently. Even the petitioner can climb slowly, She has suffered extreme loss of amenities of life. Such loss cannot be recompensed in terms of money. The Tribunal is enjoined to quantify such compensation. Keeping in mind the permanent disability suffered, the restrictions put on the active and agile movement of the petitioner due to the suffered permanent disability, I am of the opinion that a sum of Rs. 50,000/- as compensation for loss of amenities of life will be sufficient to meet the ends of justice.
37. In view of the above discussion , the total compensation to which the petitioner is entitled to comes as under:-
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1.Compensation for expenses incurred medical Rs. 9,202/- expenses
2.Compensation for conveyance charges Rs. 10,000/-
3.Compensation for special diet expenses Rs. 10,000/-
4.Compensation for attendant charges Rs. 10,000/-
5.Compensation for loss of income Rs. 21,816/-
6.Compensation for loss of earning capacity Rs. 2,45,430/-
7. Compensation for pain and suffering Rs. 50,000/-
8. Compensation for loss of amenities of life Rs. 50,000/-
____________ Total Payable sum Rs. 4,06,448/-
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38. In view of the above discussions, Issue No.2 is decided in favour of the petitioner and against the respondents. Petitioner is thus, entitled to Rs. 4,06,448/- 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.2, insurer.
Relief
39. In view of the aforesaid discussions, it is hereby held that Petitioner is thus, entitled to Rs. 4,06,448/- as compensation alongwith interest @ 7.5% per annum from the date of filing of the petition till its 17 realization from the respondents, payable by Insurance Company/respondent No.2
40. Since the amount awarded should not be frittered away by beneficiaries owing to the ignorance, illiteracy etc., the Hon'ble Supreme Court of India in a case titled 'G. M. Kerala State Road Transport Corporation Vs. Susamma Thomas' reported in 1994(2) SCC 176, has laid 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 18 investment.
41. In terms thereof, out of the award sum, 3 Lakhs be invested in FDR's of three FDRS of Rupees 1 Lakh each in name of petitioner in State Bank of India. One FDR be invested for a period of 5 years; one FDR be invested for a period of 10 years; one FDR be invested for a period of 15 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.
42. State Bank of India,Tis Hazari, has agreed to open Special Fixed Deposit Account for the victims of road accidents.
43. 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 19 said account.
(2) The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Saving Account. (3) Withdrawal from the aforesaid account shall be permitted to the claimant after due verification and the Bank shall issue photo identity Card /Pass Book with attested photographs to claim to facilitate his identity.
(4) No cheque book be issued to the claimant without the permission of this Court.
(5) Half yearly statement of account be filed by the Bank in this Court.
(6) The original FDRs shall be retained by the Bank in the Safe custody. However, the original Pass Book shall be given to the claimant alongwith the photocopy of the FDRs. (7) The original Fixed Deposit Receipts shall be handed over to the claimant at the end of the fixed deposit period. (8) No loan, advance or withdrawal shall be allowed on the said FDRs without the permission of this Court. 20 (9) On the request of the claimant, the Bank shall transfer the Saving Account to any other branch of State Bank of India according to the convenience of the claimant.
44. Respondent No.2, National Insurance Co. Ltd. is directed to deposit the cheques in the name of the petitioner/claimant within 30 days.
File be consigned to Record Room.
Announced in open court (Gurvinder Pal Singh)
today i.e. 21/01/10. Judge, MACT(West)
Delhi.