Delhi District Court
Rupali D/O Sh. Ramender Bahadur Singh vs ) Sh. Rajan Jain S/O Sh. Shyam Lal Jain on 4 June, 2011
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In the court of Sh. Ashwani Sarpal, Addl. District & Sessions Judge
cum Presiding Officer, Motor Accident Claim Tribunal
Rohini Courts, Delhi
(MACT Case no. 862/10/07)
Rupali D/o Sh. Ramender Bahadur Singh
R/o Flat No.103, Pocket D-8,
Sector-VI, Rohini, Delhi
(Minor through her father and natural guardian) ------Petitioner
Versus
1) Sh. Rajan Jain S/o Sh. Shyam Lal Jain
R/o A3/207, Sector-V, Rohini, Delhi
2) M/s. Rajdhani Associates
Office at A-189, Shastri Nagar, Delhi
3) M/s Royal Sundaram Alliance Insurance Co. Ltd.
Signature Tower, 9th Floor, Tower No. 2
South City-I, NH-8, Gurgaon (Haryana) ----Respondents
Date of institution----01-02-2007
Date of decision-------04-06-2011
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Minor petitioner Baby Rupali, aged about 11 years and student of 4th standard allegedly suffered grievous injuries on 5-11-2006 at about 9:05 a.m. near Jal Board Office at Sector-3, Rohini, Delhi when she was going on foot along with her uncle Sh. Prem Nath Singh on foot and one Santro Car bearing no. DL-2CW-7308 being driven by respondent no. 1 in rash and negligent manner at high speed hit her. A criminal case under section 279/338 IPC was registered against respondent no. 1 vide FIR no. 1127/06 in police station Rohini. Petitioner through the present petition filed by her father -2- claimed sum of Rs. 9 lakhs as compensation along with interest @ 18% p.a. from the respondents being driver, owner and insurance company of the offending car.
Respondents no. 1 and 2 in their joint written statement totally denied happening of an accident with their car whereas respondent 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 some routine technical grounds. On the basis of pleadings of the parties, following issues were framed on 1-2-2008:
1) Whether on 5-11-2006 at 9.05 a.m. near Jal Board Office, Sector-3, Rohini, car no. DL-2C-W-7308 which was being driven in a rash and negligent manner hit petitioner and caused injuries to her? OPP
2) Whether driver of the offending car held valid driving license? OPR-1
3) Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP
4) Relief.
In order to prove the case of minor petitioner, her father Sh. Ramender Bahadur Singh examined himself as PW-1, Sh. Prem Nath Singh, eye witness of accident as PW-2 and Dr. Sanjay Kumar, Specialist Orthopedics from Sanjay Gandhi Memorial Hospital as PW-3 whereas respondent no. 3 insurance company examined Sh. Ashok Kumar, Record Clerk from Transport Department as R3W1 who was also recalled for some clarifications. Respondents no. 1 and 2 opted not to examine any witness. I have heard counsel for the parties and gone through the record as well as the written submissions filed by counsel for respondent no. 3. My decision on the above mentioned issues is as under:
Issue no. 1:-
The certified copies of criminal case record Ex. PW2/A shows that respondent no. 1 has been prosecuted by the police for causing the accident in question due to rash and negligent driving of offending car. It is a fact that -3- respondent no. 1 was arrested by the police in criminal case and released on bail. The offending car was also seized and released on superdari lateron. As per FIR, respondent no. 1 himself had taken the injured petitioner to hospital after accident in the same car which fact confirms his driving of the same and presence at the spot. Respondent no. 1 in his written statement nowhere specifically disputed these facts and it is not his defence that he simply took the injured to hospital in order to help her or accident had taken place with some other vehicle.
PW-2 eye witness of this case in his affidavit of evidence disclosed how and in which manner accident had taken place. He specifically blamed respondent no. 1 for driving offending car in rash and negligent manner. The site plan of accident prepared by the investigating officer on record point out that offending car had come almost on extreme right side of the road and caused the accident by hitting the petitioner who was walking on the road. The car was not being driven on correct left side and this fact further support the version of the petitioner that traffic rules were not followed by the respondent no. 1.
During arguments, counsel for respondents no. 1 and 2 tried to raise a point of contributory negligence on the part of the petitioner also as she being minor girl of age of 9-10 years was walking on the road and his uncle PW-2 was at a distance of about 30-40 feet away from her as admitted by him in his cross examination. However firstly this is not the defence of respondents in their written statement and secondly as per decision of Andhra Pradesh High Court given in case Talasila Sandhya vs. A.P. State Road Transport Corporation 1999 ACJ 629 there cannot be any negligence or contributory negligence against a child of tender age. Supreme Court also Sudhir Kumar Rana vs. Surinder Singh, Civil Appeal no. 3321 of 2008 decided on 6-5-2008 held that ordinarily the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults. In such situation, the vague theory of contributory negligence raised by respondents no. 1 and 2 is liable to be rejected straightway.
No effective cross examination of PW-2 had taken place in this regard and I find nothing in his statement to discard his version. Some minor discrepancy in respect of execution and attestation of affidavit of evidence itself is not sufficient to reject his testimony which has almost remained -4- unchallenged. Respondent no. 1 himself did not appear in the witness box to prove the alleged defence of non happening of accident with his car as stated in the written statement. Infact even no suggestion was given to this eye witness PW-2 by respondents that accident had not taken place with his car. Hence the defence version as raised in the written statement is liable to be rejected.
It 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. It is also not their case that they had any previous enmity with the petitioner or her family members 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. Medical record proved by PW-3 shows that petitioner had suffered grievous injuries and permanent disability. Accordingly, I find no ground to disbelieve the statement of PW-2 and it is held that accident had taken place due to rash and negligent driving of offending car by respondent no. 1 by which petitioner had suffered serious injuries and there was no negligence on the part of the petitioner. This issue is thus decided in favour of petitioner and against the respondents.
Issue no. 2:-
From the statement of R3W1 a controversy regarding existence of valid and proper driving license of respondent no. 1 at the time of accident has arisen. The police charge sheet Ex. PW2/A says that respondent no. 1 was challaned earlier for violating some traffic rules and his driving license was seized on 18-6-2004 in that traffic challan issued vide serial no. AH-676088. Respondent no. 1 instead of depositing the driving license with the IO at the time of his arrest, handed over the original carbon copy of that challan chit to him. Accident took place on 5-11-2006 and respondent no. 1 by that day had not got his impounded driving license released after getting his traffic challan disposed off, though date of appearance in the court in that traffic challan had already crossed. This fact further establishes that on the date of accident as well as on the date of seizure of challan chit, respondent no. 1 was not having his original driving license in his possession as the same was in custody of traffic court.-5-
The respondent no. 1 as per the seizure memo dated 21-11-2006 prepared by IO handed over his renewed driving license as well as photocopy of expired driving license. As per record and clarificatory deposition of R3W1, the driving license of the respondent no. 1 had already expired on 6-4-2006 and he got new driving license on 7-11-2006 after the date of accident. It means that from 6-4-2006 to 7-11-2006, respondent no. 1 was not having valid and subsisting driving license as the previous driving license had already expired. He got it revalidated or renewed after the date of accident dated 5- 11-2006. Mere fact as stated by R3W1 that driving license of respondent no. 1 was never declared invalid at any time by Licensing Authority or at the time of its renewal it was presumed that driver knows the driving itself are not sufficient to give any benefit to him as this witness further stated that renewal does not take place with retrospective effect.
Now a question has arisen whether in case of expired driving license, the responsibility to pay compensation would be of owner or of insurance company. Supreme Court in National Insurance Co. vs. Vidhyadhar Mahariwala 2008 ACJ 2860 and New India Assurance Co. vs. Suresh Chandra Aggarwal IV (2009) CPJ 14 in similar situations held that where driving license had already expired and got renewed lateron after the accident, then in such situation, the insurance company is exonerated to pay the compensation and entire responsibility to pay the same shall be of the owner or driver. Court further held that renewal of driving license would not take place with retrospective effect.
In the present case also, the driving license of respondent no. 1 had already expired on 6-4-2006 and he got it renewed after expiry of seven months only on 7-11-2006 when accident had already taken place on 5-11- 2006. The record further shows that respondent no. 1 even did not care to get his expired driving license released from police or court which was seized in some traffic offence on 18-6-2004 because when he was arrested by police on 5-11-2006, he was not having his expired driving license in his possession, so had handed over the challan chit to the IO under which his driving license was seized. It appears that after happening of an accident, respondent no. 1 realized the importance of his driving license, so in order to avoid liability to pay compensation, he got it released immediately and renewed it. All these facts further point out that respondent no. 1 was not having any valid driving -6- license at the time of accident. In such circumstances, the respondent no. 3 insurance company is not liable to indemnify the owner and entire responsibility to pay the compensation amount falls upon driver and owner of offending car jointly and severally. Accordingly, this issue is decided in favour of respondent no. 3 and petitioner and against the respondents no. 1 and 2.
Issue no. 3:-
In the accident, petitioner suffered fractures of her both legs which were crushed by the offending car besides some other injuries. As per record Ex. PW1/A produced by PW-1, petitioner remain admitted in Maharaja Agarsen Hospital for ten days from 5-11-2006 to 14-11-2006. Even after discharge, she also visited hospital on various occasions as OPD patient. As per medical prescriptions placed on record, her last visit to hospital was 4-1- 2007. It means that petitioner remained under direct treatment of doctors for a period of minimum 2 months.
PW-3 who was the chairman of Medical Board and had examined the petitioner gave a certificate Ex. PW1/M that she had suffered permanent disability to an extent of 45% in relation to right lower limb, though also admitted that there is no guidelines to assess the particular disability of limb in relation to the whole body. This witness has specifically stated that petitioner now cannot walk or run properly in future as the normal human being can do. PW-1 in his affidavit of evidence also stated that her daughter is now not able to perform her necessary duties and has to remain dependent upon others. There is no cross examination of PW-1 in this regard. Thus, from the deposition of PW-1 and 3, it has come on record that life of petitioner has ruined due to this accident and now she cannot live like normal human being and has to remain dependent upon others for even her daily routine acts also. Her marriage prospects have also reduced to a great extent. The request of counsel for respondents no. 1 and 2 to treat this disability in between 20% to 23% qua the whole body is rejected and accordingly in the present circumstances, by treating her disability to an extent of 45% as it is, the loss of future earning capacity shall be assessed.
Petitioner was a minor girl age of 8-9 years at the time of accident and was not earning, so in such situation the notional income of the petitioner at Rs. 15,000/- per year is taken into consideration as per schedule of section -7- 163-A of Motor Vehicles Act. In case of minor child, multiplier of 15 is applied to count the loss of earnings. Delhi High Court in Devki Devi vs. Anil Gupta MAC. APP. no. 139/05 decided on 3-10-2007 ordered to consider atleast double increase of notional income also by adding future prospects due to inflation and increase of price index so in the present case, notional income can be taken as Rs. 30,000/- per year in case of petitioner.
In case of permanent disability and injury cases, no deduction is permissible on account of personal expenses as per decision of Supreme Court given in case Rani Gupta vs. United India Insurance Co. 2009 (2) TAC 745 as well as of our own High Court given in case Bimla vs. Gopal, MAC.
APP. no. 1028/06 decided on 22-3-2010 so the petitioner is thus entitled towards loss of earning capacity because of permanent disability a sum of Rs. 2,02,500/- (Rs. 30,000 x 15 x 45%) The treatment of the petitioner mainly took place in Maharaja Agarsen hospital. As per Ex. PW1/B, she had spent sum of Rs. 96,453/- upon hospital admission, surgery, doctors fees etc. She has placed on record certain receipts and bills to show that she had incurred expenses of Rs. 9,610/- upon medicines, physiotherapy, hospital visits etc. She also spent Rs. 1,150/- upon purchase of walker etc. as per bill Ex. PW1/F. No dispute regarding the correctness and genuineness of these bills is raised nor any evidence is led that these bills and receipts are forged or fabricated so the amount of these medical bills at Rs. 1,07,213/- is liable to be paid to petitioner.
Father of petitioner has also spent amount on conveyance of petitioner from residence to hospital and special diet. Medical record shows that petitioner had visited number of times to hospital as OPD patient and remained admit there. Some bills of taxi and auto Ex. PW1/C and D amounting to Rs. 4,000/- for conveyance from residence to hospital and back are brought on record. Non examination of concerned taxi or auto driver to prove these bills is of no consequences as it is not proved by any evidence that these are unreliable or are fake one. Accordingly the bills of Rs. 4,000/- incurred on conveyance have to be accepted as correct. 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. In case of minor, the quality and quantity of such nourishing food which includes high proteins and calcium increases. Normally no person keeps any bills of purchase of special diet.
-8-Hence in absence of documentary evidence of bills of special diet, I am of the view that maximum petitioner can be paid Rs. 10,000/- towards special diet and conveyance.
PW-1 has placed on record his salary certificate Ex. PW1/I to show that he was earning sum of Rs. 10,000/- per month. This certificate does not show for what period he remained on leave or for what period his salary was not paid due to non joining of duties due to accident of her daughter. No doubt, this witness being the father of the petitioner must have gone to hospital from time to time and might not be able to attend his duties but in absence of any certificate of loss of salary, nothing in this regard is paid but it is a fact that parents or family members of the petitioner must have taken constant care of their minor daughter and might have not attended other duties properly. PW-1 must have taken some leave from his office to remain in hospital during admission period of petitioner and also for visiting hospital from time to time and those leaves taken from office could have been utilized on some other occasions had this accident not happened, so in my view petitioner is entitled to some amount towards attendant charges also. Petitioner accordingly is entitled to lumpsum Rs. 5,000/- towards attendant charges.
Petitioner requires treatments in future also to get flap cover up of her crushed injury foot. There is a certificate of Maharaja Agarsen Hospital dated 21-4-2011 on record which point out that approximately sum of Rs. 50,000/- shall be spent upon her future treatment. When this certificate was produced in court at final arguments stage on 28-4-2011, then counsels for respondents accepted it and gave no objection to consider it at the time of passing of judgment and also felt no necessity to prove it by calling the concerned doctor and this fact was mentioned in the order sheet of particular day. Hence after relying upon this certificate and in view of no objection of respondent to accept the same as it is, petitioner is granted sum of Rs. 50,000/- towards future treatment expenses. However since this amount is yet to be spent so no interest on the same shall be paid. This amount shall remain deposited in court and shall be paid directly to the hospital by the court.
Petitioner was minor girl of age of about 11 years at the time of accident. Certificate of Sarvodya school shows that due to accident dated 5- -9- 11-2006, she did not attend the school till 31st March, 2007. She was a student of 4th class at that time. Petitioner has placed on record her result card which point out that she had passed her 4th class in the next year in 2007-08 session. From this fact it can be inferred that either due to non appearance in exams or due to shortage of attendance because of accident, petitioner was either failed or not promoted to higher class and thus she had suffered loss of studies and one year of her educational promotion. Accordingly in such situation and keeping in view the standard in which she was studying, she is granted lump sum of Rs. 10,000/- towards loss of studies. In this regard some reliance can be placed upon the decision of Delhi High Court given in case Upendra Chugh vs. Malkiat Singh 2004 (73) DRJ 292.
Legs of petitioner were fractured and crushed due to which she has suffered permanent disability to an extent of 45%. Her legs have also become disfigured and require surgery in future also to cover up crush injuries. She now cannot walk and run in normal manner as stated by doctor PW-3. Being a female, her marriage prospects have also reduced to some extent. Delhi High Court in Lokesh Kumar Gupta vs. Oriental Insurance Co., MAC. APP. no. 887/05 decided on 2-9-2009 awarded sum of Rs. 50,000/- towards loss of marriage prospects in case of a student of 16 years whose right hand was amputated upto palm along with three fingers. In another case Rakesh Rakheja vs. H.L. Kashyap, MAC. APP. no. 11/10 decided on 1-6-2010 Delhi High Court in case of 15% disability of 24 years old unmarried person had awarded Rs. 15,000/- towards loss of marriage prospects so after taking into consideration these judgments as well as status of petitioner being a female and minor child as well as suffering of 45% permanent disability, she is awarded compensation of Rs. 50,000/- towards loss of marriage prospects in lump sum.
PW-3 doctor has already deposed that petitioner now cannot walk and run as a normal person and has to remain dependent upon others. She may be unable to travel by public transport in future and has to spent considerable amount on conveyance for the rest of her life. Delhi High Court in Mohd. Feroz vs. Roshan Lal, MAC. APP. no. 61/07 decided on 22-4- 2010 has awarded sum of Rs. 1 lakh toward future conveyance in case of person of age of 18 years who had suffered permanent disability to an extent of 70% of both legs. Accordingly keeping in view the facts of the present case -10- and extent of disability of petitioner, she is granted lumpsum of Rs. 50,000/- towards future conveyance charges. However this amount shall remain deposit in FDR for a period of 20 years and shall not be paid to the petitioner but she will be permitted to withdraw quarterly interest of the same for the purpose of using the same on traveling purpose.
Petitioner was a minor child of age of about 8-9 years at the time of accident. Judicial notice can be taken of the fact that due to such type of fractures and injuries as is suffered by the petitioner, she might have suffered great pain and sufferings. Being a minor child, she also could not be in a position to control her pain and sufferings as could be controlled by an adult. She must have remained dependent upon her parents for even going to toilet. Due to fractures of both legs, she could not go out of house to play with her friends and suffered loss of amenities. She is now unable to walk properly and smoothly for whole life. She is still a minor child and unable to play and enjoy the company of her friends. Difficulty and inconvenience may arise to her to perform even daily personal routine acts in future and she has to remain dependent upon others in future also. She being a minor child must have suffered great mental trauma and shock of accident which cannot be even imagined. Her legs have become disfigured and some inferiority complex must have arisen in her mind. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the age, status and condition of the petitioner, hospital admission and visits as well as above mentioned facts etc., she is granted lump sum amount of Rs. 1,00,000/- towards pain and sufferings, inconvenience, mental shock, disfigurement and loss of amenities etc. Since it is held above while deciding issue no. 1 that respondent no. 3 insurance company is not liable to indemnify the insured/owner of the offending vehicle due to driving of the same by a person whose driving license had already expired so due to violation of terms and conditions of insurance policy, now the entire responsibility to pay the compensation amount shall be of respondents no. 1 and 2 being the driver and owner of the offending car. They are thus directed to pay the following compensation to the petitioner jointly or severally. In view of the above discussions, this issue is decided in favour of petitioner by holding that she is entitled to get the following total compensation from the respondents no. 1 and 2 jointly or severally:
-11-1) Loss of earning capacity-----------------------------Rs. 2,02,500/-
2) Medical expenses--------------------------------------Rs. 1,07,213/-
3) Special diet & conveyance charges--------------Rs. 10,000/-
4) Attendant charges-------------------------------------Rs. 5,000/-
5) Future treatment charges---------------------------Rs. 50,000/-
6) Loss of studies------------------------------------------Rs. 10,000/-
7) Loss of marriage prospectus-----------------------Rs. 50,000/-
8) Future conveyance charges------------------------Rs. 50,000/-
9) Pain and sufferings etc.------------------------------Rs. 1,00,000/-
__________________ Total Rs. 5,84,713/-
Since the expenses of Rs. 50,000/- upon future treatment and Rs. 50,000/- upon future conveyance are yet to be incurred so no interest on these amounts are payable. Petitioner shall be entitled to interest at the rate of 7.5% p.a. only on the amount of Rs. 4,84,713/- from the date of institution of the petition i.e. 1-2-2007 till realization.
Issue no. 4 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondents no. 1 and 2 jointly and severally are directed to pay sum of Rs. 5,84,713/- to the petitioner within 30 days along with interest at the rate of 7.5% p.a. on sum of Rs. 4,84,713/- from 1-2-2007 till the compensation amount is fully paid.
Since petitioner is minor so the substantial amount shall be deposited in FDRs. The court has also to take care that the compensation amount meant for minor petitioner is spent only upon her or for her benefit and is not misused by anyone. Accordingly it is ordered that out of the compensation amount, sum of Rs. 4,00,000/- be deposited in shape of FDR in the name of petitioner till the date of her majority in SBI, Rohini Court branch. She is however permitted to withdraw quarterly interest on the same. This FDR shall not be encashed without permission of the court. No loan or advance shall be allowed on this FDR without permission of the court.-12-
Sum of Rs. 50,000/- to be spent upon future treatment expenses shall remain deposited in the court in FDR in the name of court and shall be paid directly to the hospital by the court after she undergoes future treatment as per certificate of Maharaja Agarsen Hospital dated 21-4-2011. This amount shall not be handed over to the petitioner to ensure that petitioner definitely undergoes necessary future treatment and this amount is not misused for personal or other expenses.
Another sum of Rs. 50,000/- awarded towards future conveyance shall remain in FDR for a period of 20 years and shall not be encashable before expiry of this period but petitioner is permitted to withdraw quarterly interest of the same for using it on her future conveyance.
Remaining amount along with accrued interest be deposited in the saving bank account of the petitioner to be opened in SBI, Rohini Court branch. No cheque book or ATM card shall be issued to the petitioner on this saving account. The withdrawal from this account shall be permissible only on the personal appearance of both minor petitioner along with her father before the manager and limit for withdrawl shall be upto maximum of Rs. 20,000/- per month subject to any order of the court. Bank manager shall issue a photo identity card in respect of this saving account. All the FDRs shall be got prepared in this branch only and cannot be encahsed premature without orders of court. The interest accrued on above FDRs shall be automatically credited in the saving bank account of the petitioner.
Bank Manager, SBI, Rohini shall send six monthly statement of account of saving account to the court to keep check upon the same and to ensure that withdrawl does not take place in violations of the above order or for any other purpose except for benefit of minor petitioner. Respondents no. 1 and 2 are directed to issue separate cheques of the compensation amount as per above order and deposit it in court within 30 days. Copy of this judgment be given to all the parties and file be consigned to record room (Ashwani Sarpal) Dt. 4-6-2011 Judge, MACT (Outer-II)