Delhi District Court
Presently At: Flat No. 57 vs Sh. Vinod Kumar on 21 December, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
AIR No. 55/AIR/11
IN THE MATTER OF :
Sh. Thomas George @ Thomas K.G.,
S/o Sh. E. George,
Earlier R/o C116, Narayana Vihar,
New Delhi.
Presently at: Flat No. 57, Pocket16,
Sector 3, Dwarka,
New Delhi - 110 075.
... Claimant
Versus
1. Sh. Vinod Kumar, (Driver)
S/o Sh. Sube Singh,
R/o Village Pranpura,
P.S. Khod, Distt. Rewari,
Haryana.
2. M/s. Nirvan Travels, (Owner)
90A, Sector 18, Udhyog Vihar,
Gurgaon, Haryana.
3. Bajaj Allianz Ins. Co. Ltd., (Insurer)
201201A, 2nd Floor, ITL TW in Tower,
Netaji Subhash Place,
Pitampura, Delhi - 110 088.
... Respondents
AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 1 of 22
FILED ON : 01.06.2009
RESERVED ON : 17.12.2013
DECIDED ON : 21.12.2013
: J U D G M E N T :
1. This accident information report is filed by the Investigating Officer in FIR No. 7/08 registered at P.S. Mahipalpur under Section 279/338 of IPC in which claimant Shri Thomas George was injured grievously when he had suffered a road traffic accident while he was driving his motorcycle which had collided with vehicle bearing No. HR55BT4469.
2. This vehicle was driven by Respondent No. 1, owned by Respondent No. 2 and insured by Respondent No. 3.
3. This report was registered as a regular claim petition on 08.06.09 under Section 166 (4) of the Motor Vehicles Act, 1988.
4. Notice of this report was issued to all the parties.
5. Respondent No. 1 and 2 were proceeded ex parte.
6. Only Insurance Company filed its written statement.
7. Insurance Company admitted factum of insurance of the offending vehicle on the date of accident but stated that the driver must prove that he had a valid driving license and insured must prove that the vehicle was not being driven in contravention of terms and conditions of policy, only then Insurance Company will be liable to pay compensation to the AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 2 of 22 claimant. Simultaneously, it is also stated that the accident is due to self negligence of claimant himself and therefore, Insurance Company is not liable to pay any compensation for the negligence of claimant.
8. Therefore, to decide the compensation payable to the claimant, following issues were framed:
1) Whether the petitioner has received injuries on his person in an accident which took place on 20.02.2008 caused due to negligent driving of the vehicle Qualis bearing Registration No. HR 55BT 4449 being driven by driver Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3? OPP
2) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP
3) Relief.
9. Claimant examined 12 witnesses in support of his claim petition.
10. PW1, wife of the claimant stated in her evidence by way of affidavit that on 20022008, at about 8.45 am, her husband along with her son Bibin had started from their house at Dwarka by Motorcycle No. DL4SAR4352 for going to his factory at Kapashera. First, he dropped his son at Dwarka Sector11 Metro Station and at about 9.009.15 am, when he crossed the Dwarka underpass and reached near petrol pump near Shokeen Farm on Samalkha Dwarka Road for going towards Mahipalpur, he was hit by a Qualis Car bearing No. AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 3 of 22 HR55BT 4449 driven by Respondent No. 1 in a rash and negligent manner resulting in grievous injuries to the claimant.
11. She stated that the police had admitted the claimant in Safdarjung Hospital from where she got him admitted to Sir Ganga Ram Hospital where claimant remained in Coma for 15 days.
12. She stated that as against a bill of Rs.2,30,024/, a sum of Rs.1,09,752/ was reimbursed by ECHS and balance was borne by her.
13. She also stated that due to continuous pain in left leg of the claimant, he was admitted in Orthonova Hospital from 04062008 to 07062008 where for fracture of left tibia, claimant was operated upon.
14. She further stated that as the claimant was unable to move his left elbow and right shoulder, he was again admitted in Orthonova Hospital through ECHS from 07102008 to 11102008 and doctors diagnosed that he has developed fixed deformity in the right shoulder and left elbow and his left elbow was fixed in 90 degree flexion and right shoulder fixed in adduction and internal rotation. He was operated upon for his right shoulder.
15. She stated that the claimant had spent Rs.2 lacs on conveyance charges, Rs.2,49,900/ towards physiotherapist's charges and Rs.1,93,850/ towards attendant's charges as claimant is not in a position to do any of his day to day routine jobs himself and needs an attendant throughout his AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 4 of 22 remaining life.
16. She also stated that the claimant was doing his own business of fabrication of export garments under the name and style of M/s. Bibin Garments and was earning Rs.25,000/ p.m.
17. She stated that the claimant was having 50 sewing machines and more than 50 workers were working in his factory.
18. She stated that the claimant was doing fabricating job for export garments for M/s. Alankar Creations who has deducted a sum of Rs.19,074/ and issued Form16A for a period from 01042007 to 31032008.
19. She stated that though for financial year, 200708 claimant could not file his income tax returns but deductions shown in Form16A give an indication of earnings of the claimant in that year also. She also stated that the Ld. ACMM had accepted untrace report without granting any hearing to the claimant and the matter is still pending before Ld. ASJ in the form of revision petition. (Later on, the Ld. ASJ remanded back the matter before the Ld. ACMM vide orders dated 18.12.2012 with directions to hear the claimant before accepting untrace report).
20. In her examination in chief, she proved the following documents:
1. Ex.PW1/1: This is a disability certificate given to the claimant by Medical Board of DDU Hospital opining that the claimant is suffering from Quadriparesis with 75% permanent AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 5 of 22 disability in nature.
2. Ex.PW1/2: MLC prepared at Safdarjung Hospital opining that the nature of injuries are grievous.
3. Ex.PW1/3: Discharge summary of Sir Ganga Ram Hospital where claimant had remained admitted from 2022008 to 2432008 as a case of RTA Pneumocephalus with fracture temporal bone with small SAH with defuse axonal injury.
4. Ex.PW1/48 : CT Report of New Delhi Scan Research Institute, certificates and prescription slips of Sir Ganga Ram Hospital.
5. Ex.PW1/9 : Bill of Sir Ganga Ram Hospital for Rs.2,30,024/ for admission of the claimant from 20022008 to 24032008.
6. Ex.PW1/1014A : Prescription slips of various doctors including prescription slip of Sneh Kunjphysiotherapy centre.
7. Ex.PW1/1544: Cash memos of different chemists for purchase of medicines as well as payments to the doctors and hospital for OPD consultancy by claimant from time to time.
8. Ex.PW1/45: Patient care notebook of ECHS polyclinic BHDC.
9. Ex.PW1/46 : Discharge summary of Orthonova Hospital where the claimant was admitted on 0462008 and discharged on 0762008 with diagnosis delayed union left tibia with pressure sore head of left fibula with foot drop left with head injury (recovering) with UTI.
OPD Card of the claimant of
10.Ex.PW1/4748:
AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 6 of 22Orthonova Hospital.
11.Ex.PW1/49: Discharge summary of claimant from Orthonova Hospital where he was admitted on 07102008 and discharged on 11102008 with diagnosis myositis ossificans left elbow and right shoulder.
12.Ex.PW1/5055: Treatment record of the claimant with receipts for purchase of medicines.
13.Ex.PW1/56: Receipts of physiotherapist totaling Rs.2,49,900/.
14.Ex.PW1/57 : Receipt for attendant's charges totaling Rs.1,93,850/.
Blank challan of Bibin Garments.
15.Ex.PW1/58:
16.Ex.PW1/5962: ITR of the claimant for Assessment Year, 200203 (Income Rs.61,067/), Assessment Year, 200304 (Income Rs.67,854/), Assessment Year, 200506 (Income Rs.93,460/), Assessment Year, 200607 (Income Rs.
1,51,060/).
17.Ex.PW1/6364 : Form No.16A issued by M/s. Alankar Creations in the name of Bibin Garments showing credit of Rs.7,74,020/ and total tax deposited Rs.17,632/ and another Form 16A showing amount credited Rs.63,629/ and total tax deposited Rs.1,442/.
18.Ex.PW1/6567: Certified copy of documents filed by IO along with untrace report filed before Ld. MM and accident information report.
21. In cross examination, PW1 admitted that she is not an eye witness to the accident and she was a teacher in AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 7 of 22 Continental Public School at a salary of Rs.7,000/ p.m. She stated that she had to avail leave for two years to attend the claimant. She denied a suggestion that Bibin Garments still carries on business through her son.
22. Other suggestions contrary to her case were denied by her.
23. Second witness examined by the claimant is PW2 Shri Sushil Gomes who stated that Ex.PW1/57 bears his left thumb impression. As already noted above, Ex. PW1/57 is attendant's details engaged by claimant to look after him for moving the wheel chair, giving food, brushing, shaving, emptying urine bag, cleaning stools and washing clothes etc.
24. In cross examination, PW2 deposed that he was receiving attendant's charges in cash from the claimant and he was not giving any receipt to claimant while receiving attendant's charges. He denied a suggestion that he has not worked as an attendant for the claimant.
25. PW3 is an eye witness to the accident who stated that he was following the claimant in another motorcycle and had seen the accident when the offending vehicle had hit the motorcycle of claimant from behind. However, in cross examination, he stated that the offending vehicle was going ahead of motorcycle of claimant and its driver had applied sudden brakes as a result of which the motorcycle of the claimant had hit the offending vehicle from behind. He denied a suggestion that the accident was due to negligence of claimant.
AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 8 of 2226. Shri V.S. Gossain, Sr. Physiotherapist who is giving physiotherapy exercises to the claimant was examined as PW4. He filed his evidence by way of affidavit stating therein that since 25.03.2008, he is giving physiotherapy treatment to the claimant. He stated that the claimant will need physiotherapy for the rest of his life. He proved his certificate certifying that he has charged Rs. 47,400/ from May, 2012 to October, 2012 as Ex. PW4/1.
27. In crossexamination, he stated that he is a Diploma holder in physiotherapy of three and a half years duration. This diploma was conducted by Major Rehabilitation Centre Army Hospital, Delhi Cantt. and the diploma was proved as Ex. PW4/D1. Certificate given by BSF, CMO certifying that PW4 is a physiotherapist for BSF since 1990 was proved as Ex. PW4/2. Other suggestions contrary to his examinationinchief were denied by him.
28. Fifth witness examined by the claimant was Dr. Ravi Pathak as PW5. He deposed that he was one of the members of the Medical Board which has examined the claimant and given him disability certificate which was already exhibited as Ex. PW1/1. He explained that Quadriparises is a condition where all the four limbs of human body becomes weak and incapable of performing day to day activities. Such a person needs assistance of an attendant for twenty four hours in a day and this condition cannot improve by any kind of medicines. He stated that such a person needs physiotherapy for the rest of his life to AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 9 of 22 maintain whatever functional ability is there in the limbs.
29. In crossexamination, he deposed that if the patient does not take physiotherapy regularly his condition would deteriorate further. He stated that condition of the claimant is not likely to improve by physiotherapy. It only helps in preventing further deterioration in the condition. He denied a suggestion that condition of claimant will improve in future with physiotherapy or that the claimant does not need any physiotherapy.
30. Sixth witness examined by the claimant was Shri Piyara Singh, Medical Record Officer of Sir Ganga Ram Hospital as PW6. He produced discharge summary of the claimant which was already exhibited as Ex. PW1/3 and he had also brought original bill for Rs. 2,30,024/ which was already exhibited as Ex. PW1/9.
31. Seventh witness examined by the claimant was Shri Anil Gupta, Manager (Accounts) of M/s. Alankar Creations as PW7. He stated that he had issued TDS certificates in the name of Bibin Garments on 30.04.2008 and on 31.05.2008. He stated that he has signed Ex. PW1/63 and Ex. PW1/64.
32. In crossexamination, he stated that the claimant is the proprietor of Bibin Garments and this fact is evident from PAN Number of payee which is mentioned on the TDS Certificates. He also proved authorization letter given in his name by M/s. Alankar Creations as Ex. PW7/D3.
33. Eighth witness examined by the claimant as PW8 AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 10 of 22 was Shri Hawldar George Thomas, Dealing Clerk of ECHS who produced details of payments given to the claimant which were exhibited as Ex. PW8/A. This is a letter of Officerin Charge of ECHS Cell addressed to this Tribunal stating therein that a sum of Rs. 1,09,752/ was given to the claimant towards cost of treatment in Sir Ganga Ram Hospital. It is stated that although the claimant had claimed a sum of Rs. 2,42,896/ but balance was not given to the claimant as payments are given as per CGHS rates.
34. Ninth witness examined by the claimant as PW9 was Shri Rajender, Senior Tax Assistant, Office of ITO, Ward No. 27(1) who produced a letter addressed by ITO to this Tribunal along with computerized printout of the returns for the assessment years, 200304, 200506, 200607 and details of TDS for the financial year, 200708 as Ex. PW9/1.
35. Tenth witness examined by the claimant was Shri Chhote Lal, Record Clerk of Orthonova Hospital who produced discharge summary which were already exhibited as Ex. PW1/46 and 49.
36. Eleventh witness examined by the claimant was Col. P.C. Chaudhary who produced upto date treatment record of the claimant as Ex. PW11/1.
37. Twelfth witness examined by the claimant was Shri Rominder Kumar Kukreja, Record Clerk of G.B. Pant Hospital who proved letter of MS of G.B. Pant Hospital to this Tribunal as Ex. PW12/A opining that the claimant is severely disabled in respect of his Neuropsychological evaluation and his activities AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 11 of 22 of daily living (ADL) are impaired upto the extent of ADL 95.28%.
38. On behalf of respondents, only evidence of Investigating Officer, Inspector Yashbir Singh was recorded as R3W1. He was examined as a witness by the Insurance Company and stated in his examinationinchief that the reason for filing cancellation report was that the claimant had hit the alleged offending vehicle from behind. The alleged offending vehicle was parked on one side of the road i.e. on left side of the road and he has not received any instructions from the Court of Ld. Magistrate for reinvestigation of the matter so far.
39. No other witness was examined by any of the party.
40. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1:
41. Burden of proving this issue is on the claimant.
42. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
43. This is sine qua non for getting the relief.
44. Claimant himself did not enter in the witness box for the reason that he is suffering from Quadriparesis with 75% permanent disability in nature. As per PW5, Dr. Ravi Pathak, Quadriparesis is a condition where all the four limbs of human AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 12 of 22 body become weak and incapable of performing day to day activities. He deposed that such a person needs assistance of an attendant for twenty four hours in a day and this condition does not improve by any kind of medicine. As per Ex. PW12/A which is a letter written by Medical Superintendent of G.B. Pant Hospital to this Tribunal, it was reported that patient is severely disabled in respect of his Neuropsychological evaluation and his activities of daily living (ADL) are impaired upto the extent of 95.28%.
45. Therefore, no adverse inference can be drawn against claimant for his not entering in the witness box as an eye witness to prove rash and negligent driving by Respondent No. 1.
46. Claimants have examined an eye witness as PW3, Shri Alexander. He stated that he is business associate of the claimant and is an eye witness to the accident. In examination in chief, he stated that the offending vehicle had hit the claimant from behind but in crossexamination, he stated that the offending vehicle Toyota Qualis Colour White bearing No. HR554449 was going ahead of motorcycle of petitioner and the said Toyota Qualis had applied emergency brakes as a result of which the motorcycle of the petitioner had hit Toyota Qualis from behind. He denied a suggestion that the accident was due to negligence of claimant and he stated that the claimant was wearing a helmet at the time of accident.
47. As per Final Form Report under Section 173 of Cr.
AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 13 of 22P.C. filed by the Investigating Officer, he had recorded statement of driver of the offending vehicle where the driver had stated that due to failure of brakes, the vehicle was parked next to Shokeen Farm at Kapashera Road and the claimant had hit the Toyota Qualis from behind and he had ran away fearing for his safety.
48. Therefore, untrace report was filed.
49. However, order of Ld. ACMM accepting the untrace report was challenged by the claimant before the Ld. ASJ who vide his orders dated 18.12.12 remanded back the matter before the Ld. ACMM with directions to hear the claimant before passing any directions on untrace report.
50. Till the disposal of this claim petition, no final order was passed by the Ld. ACMM accepting the untrace report or otherwise.
51. Learned counsel for the claimant Sh. Arun Kumar Tanwar has pointed out that the version of the driver of the Toyota Qualis that brakes of his vehicle had failed and he had parked his vehicle on one side of the road stands falsified by a perusal of the Mechanical Inspection Report of the offending vehicle which shows that the "Brakes were O.K" and "vehicle on road". Therefore, he argued that the statement of driver of the Toyota Qualis that the vehicle was parked on one side of the road due to failure of brakes stands falsified by the report prepared by an expert which opined that brakes were o.k. and vehicle was on road. He further argued that the said Mechanical Inspection Report supports the allegations of AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 14 of 22 claimant that Respondent No. 1 driving his offending vehicle had applied sudden brakes in a rash and negligent manner and claimant following him on his motorcycle, dashed against the offending vehicle resulting in grievous injuries to him.
52. The stand of Respondent No. 1 that the offending vehicle was parked on one side of the road is also falsified by observations of the Investigating Officer recorded in FIR that he with the help of a police Constable had pushed both the vehicles involved in the accident to one side of the road to avoid any other accident.
53. It shows that the the offending vehicle was not already parked one side of the road as stated by its driver.
54. Therefore, considering the fact that the driver did not appear before this Tribunal to give his version of the accident and had rather run away from the place of accident, this Tribunal forms an opinion that the accident had taken place as Toyota Qualis had applied sudden brakes in the middle of the road and the claimant driving his motorcycle had collided with the offending vehicle from behind.
55. In a way, this version of the accident is also accepted by Sh. M.P. Shahi, learned counsel for the Insurance Company because in written arguments given by him a defence of contributory negligence is taken.
56. Counsel for insurance company has relied on Sunil Kumar Vs. Gopal Shah and Anr., III 2012 ACC 180 where liability was apportioned in the ratio of 75% against the driver which had hit the offending vehicle which was in a stationary AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 15 of 22 condition and 25% against the driver of the vehicle which had parked his vehicle on the road.
57. He has also relied on Rajrani Vs. Oriental Insurance Company, 2009 (4) TAC 385 SC, Updesh Kaur Vs. Jagram and Ors., III 2004 ACC 106, Renuka Devi H. Vs. Bangalore Metropolitan Transport Corporation, 2008 ACJ 1188, Managing Director, Tamil Nadu State Corporation Vs. Amudha Siva Prakasam, 2012 ACJ 393 and Krishna Visheshwar Hegde Vs. General Manager, K.S.R.T.C., 2008 ACJ 1617 where liability was apportioned in the ratio of 50% for the vehicle which was going next to the vehicle and 50% against the vehicle which had hit the vehicle going in front of him.
58. On the other hand, learned Counsel for claimant has relied on Shrimanti & Ors. v. Krishna Deva Madiwal & Ors., 2005 ACJ 350 where apportionment of compensation was in the ratio of 75% for vehicle which was going in front and 25% for vehicle which had hit from behind.
59. This Tribunal is of the opinion that Toyota Qualis was not stationary or parked on one side of the road at the time of accident but it was moving and had applied brakes suddenly and claimant could not control his motorcycle and hit the said Toyota Qualis from behind.
60. In such a situation, the liability of Toyota Qualis is 50% and liability of claimant for contributory negligence is also 50%.
61. Issue No. 1 is decided accordingly.
ISSUE NO. 2: AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 16 of 22
62. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:
(i) The compensation payable to the claimant who is a victim of road accident 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 far as money can do so, in a fair, reasonable and equatable manner.
(ii) Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
(iii) In routine personal injury cases compensation is awarded only under heads (i),
(ii)(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 is granted under any of the heads AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 17 of 22
(ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
63. As already noted, the claimant had remained admitted in Sir Ganga Ram Hospital for his treatment from 20.02.2008 to 24.03.2008 as a case of RTA Pneumocephalus with fracture Temporal Bone with Small SH with defuse with Axonal injury.
64. He was also admitted in Orthonova Hospital from 04.06.2008 to 07.06.2008 and 07.10.2008 to 11.10.2008 and the effect of injuries was such that now he has suffered Quadriparesis which is weakening of all four limbs resulting in 75% permanent disability.
65. As per letter of G. B. Pant Hospital, he is severely disabled in respect of his Neuropsychological evaluation and his activities of daily living (ADL) are impaired upto the extent of 95.28%.
66. Counsel for claimant has relied on Kavita v. Deepak, 2012 AIR SCW 4771 to submit that claimant be awarded a compensation of Rs. 3 lacs for physical and mental pain. However, in each case award under different heads is passed depending upon peculiar facts and circumstances of that case.
67. In the facts and circumstances of this case, in the opinion of this Tribunal, it will be just and reasonable if for Pain and Suffering, this claimant is awarded a compensation AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 18 of 22 of Rs. 2,00,000/. Therefore, claimant is awarded Rs. 2,00,000/ for Pain and Suffering.
68. In this case, claimant had spent Rs. 2,41,197/ on his medical treatment and even out of this amount a sum of Rs. 1,09,752/ was reimbursed to him from ECHS. Therefore, he is awarded a compensation of Rs. 1,31,445/ for Medical Treatment.
69. Considering admission of claimant in hospitals on several occasions, he is awarded a compensation of Rs. 25,000/ for Special Diet and Rs. 25,000/ for Conveyance Charges.
70. Claimant is an income tax payee. His income from profession for assessment year 20022003 was Rs. 61,067/, for assessment year 20032004 was Rs. 67,854/, for assessment year 20052006 was Rs. 93,460/, for assessment year 20062007 was Rs. 1,51,060/. Thereafter there is no ITR for assessment year 20072008. That is because the claimant had suffered accidental injuries in February, 2008. However, Ex. PW1/63 which are Form 16 A given by M/s. Alankar Creations shows that as against total amount paid Rs. 7,74,020/ a tax of Rs. 17,632/ was deducted at source for a period from 01.04.07 to 30.03.08. Furthermore, as against payment of Rs. 63,629/ a TDS of Rs. 1,442/ was deposited by M/s. Alankar Creations. Therefore, income of the claimant can safely be treated as Rs. 1,50,000/ p.a.
71. With the kind of neuropsychological and physical disabilities suffered by claimant, his earning capacity is zero AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 19 of 22 now.
72. In a case of injury, while awarding compensation nothing is to be deducted for personal expenses.
73. Therefore, Loss of Income for the claimant due to accidental injuries would be Rs. 16,50,000/ i.e. Rs. 1,50,000/ x 11. Multiplier of 11 is applied as per Sarla Verma v. DTC, 2009 Scale 129 because claimant was more than 51 years of age at the time of accident.
74. However, as his age was more than 51 years, no compensation is given for loss of future prospects.
75. PW5 Dr. Ravi Pathak has affirmed that claimant needs physiotherapy. Till date claimant has spent Rs. 2,47,170/ on physiotherapist. This is evident from Ex. PW1/56 as well as from evidence of qualified senior physiotherapist Sh. V.S. Gosain, PW4. Therefore, claimant is awarded a compensation of Rs. 2,47,170/ for Physiotherapy Charges so far.
76. He will need physiotherapy in future also. In the case of Kavita (supra), the victim was 31 years of age and the Hon'ble Supreme Court in its judgment dated 22.08.12 had awarded expenses for physiotherapy in future @ Rs. 3000/ per month for 25 years.
77. In that case the accident was of 2004 whereas in this case the accident is of the year 2008. Present claimant is more than 56 years of age today. Therefore, for Physiotherapy he is awarded a compensation of Rs. 5000/ per month or Rs. 60,000/ p.a. and applying a multiplier of 9, he is awarded a AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 20 of 22 compensation of Rs. 5,40,000/ for Physiotherapy Charges in Future.
78. As per evidence of PW2, claimant is taking the help of an attendant for moving of wheel chair, giving food, brushing, shaving, removing urine from urine bag, cleaning stools and washing of clothes. Till date claimant has spent Rs. 1,93,850/ on attendant's charges. This is evident from Ex. PW1/57. Therefore, claimant is awarded a compensation of Rs. 1,93,850/ for Attendant's Charges incurred till date.
79. Claimant will need help of an attendant in future also. He is awarded compensation @ Rs. 4,000/ per month for attendant's charges or Rs. 48,000/ p.a. and applying a multiplier of 9 because today claimant is 56 years of age, a compensation of Rs. 4,32,000/ is awarded for Attendant's Charges in Future.
80. In the end, claimant is also awarded Rs. 2,00,000/ for Loss of Amenities and Loss of Expectation of Life.
81. Therefore, total compensation payable to the claimant will be Rs. 36,44,465/. However, as himself is held responsible for contributing to the accident to an extent of 50%, the compensation payable to him would be Rs. 18,22,232/ which shall be payable with interest @ 7.5% p.a. from the date of filing of this report which is 01.06.09 till its realization.
82. Insurance company has not proved any defence. Therefore, compensation would be payable by insurance company which be deposited within 30 days under intimation AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 21 of 22 to the claimant as well as to the counsel for the claimant by registered post.
83. Nazir of this court will also send court notice to the claimant as well as his counsel when he receives intimation of deposit of compensation by the insurance company.
84. Ahlmad will put up this file with report from Nazir regarding deposit of compensation again on 25.03.2014.
85. Out of total compensation awarded in favour of claimant, Rs. 10 lacs shall be invested in 10 FDRs of equal amount for a period from 1 to 10 years in any nationalised bank of the choice of the claimant and rest will be released in his favour as he has already incurred expenses in the form of medical treatment, attendant charges, charges of physiotherapist etc.
86. Copy of this order be given dasti to all the parties.
87. File be consigned to the Record Room.
Announced in the Open Court.
On the 21st day of December, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
AIR No. 55/AIR/11 Sh. Thomas George v. Sh. Vinod Kumar & Ors. Page 22 of 22