Delhi District Court
Smt. Laxmi Sajwan vs Sh. Lakha Raj (Died In The Same Accident) ... on 27 February, 2017
IN THE COURT OF SH. ARUN BHARDWAJ:
PO MACT(SE-01), SAKET COURTS: NEW DELHI
Suit No. 4068/16 & Suit No. 4255/15
Suit No. 4068/16
FIR No. 32/2011
PS : Sarita Vihar
U/s 279/338/304A IPC
CNR No. DLSE01-000121-2011
1. Smt. Laxmi Sajwan
W/o Late Sh. Sudarshan Singh Sajwan
R/o. 1/247, Dr. Ambedkar Nagar,
Sector-5,
New Delhi -110062
2. Sh. Sudarshan Singh Sajwan (Died during
pendency of the Claim Petition)
S/o late Sh. Govind Singh Sajwan,
through Legal Heirs:-
2(a) Sh. Anupam Sajwan (Son)
R/o 1/247, Dr. Ambedkar Nagar,
Sector-5
New Delhi-110062.
2(b) Smt. Laxmi Sajwan,
W/o late Sh. Sudarshan Singh Sajwan,
R/o 1/247, Dr. Ambedkar Nagar,
Sector-5,
New Delhi-110062.
... Claimants
Versus
1. Sh. Lakha Raj (Died in the same accident) (Driver)
S/o Sh. Chandra Pal Singh, through LRs
(Driver of the Tata Sumo bearing no.DL-IVB-6247)
1(a) Smt. Shakuntla
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 1/23
& &
4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
W/o Late Shri Lakha Raj,
R/o H. No. 347, Gali No. 17G,
Molarband Extension, New Delhi.
2. M/s Indersons Motors Pvt. Ltd. (Owner)
(Owner of Tata Sumo bearing no.DL-IVB-6247)
17-C, New Colony,
Model Basti,
New Delhi - 110005
Through its Managing Director / Director
3. M/s HDFC ERGO General Insurance Company Limited (Insurer)
(Insurance Company of Tata Sumo bearing no. DL-IV B-6247)
Ambadeep Building, Ground Floor,
14, Kasturba Gandhi Marg,
New Delhi - 110001.
Through its Managing Director/Director
4. Sh. Deepak Khullar, (Owner)
(Owner of Truck bearing no.HR-55E-0121)
S/o Sh. Vijay Khullar,
R/o House No. N-40,
Mukherjee Nagar,
Delhi - 110009.
5. Sh. Manjesh Kumar, (Driver)
(Driver of Truck bearing no.HR-55E-0121)
S/o Sh. Bajri Parsad,
R/o Village Kakaraja,
Police Station Kher Garh,
District Firojabad (U.P.)
6. Insurance Company of (Insurer)
Truck bearing No. HR 55E 0121
Date of institution : 29.04.2011
Reserved on : 23.02.2017
Date of Decision : 27.02.2017
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 2/23
& &
4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
Suit No. 4255/16
FIR No. 32/2011
PS : Sarita Vihar
U/s 279/338/304A IPC
CNR No. DLSE01-000121-2011
1. Sh. Himanshu
S/o Sh. Rajender Kumar Sharma,
1240, B-10, Govind Puri, Kalkaji
New Delhi.
... Claimant
Versus
1. Smt. Shakuntla (LR of Driver)
W/o Late Shri Lakha Raj,
R/o H. No. 347, Gali No. 17G,
Molarband Extension, New Delhi-110044.
(Legal heirs of Late Sh. Lekh Raj,
Driver of Tara Sumo bearing no.DL-1VB-6247)
2. M/s Indersons Motors Pvt. Ltd. (Owner)
17-C, New Colony, Model Basti,
New Delhi - 110005
(Owner of Tata Sumo bearing No. DL-IVB-6247)
3. M/s HDFC ERGO General Insurance Company Limited (Insurer)
Through its Manager Ground Floor,
Ambadeep Building, Kasturba Gandhi Marg,
Connaught Place, New Delhi - 110001.
(Insurance company of Tata Sumo bearing No. DL-IVB-6247)
4. Sh. Deepak Khullar, (Owner)
S/o Sh. Vijay Khullar,
R/o House No. N-40,
Mukherjee Nagar,
Delhi - 110009.
(Owner of Truck bearing no.HR-55E-0121)
5. Sh. Manjesh Kumar, (Driver)
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 3/23
& &
4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
S/o Sh. Bajri Parsad,
R/o Village Kakarala,
Police Station Kher Garh,
District Firojabad (U.P.)
(Driver of Truck bearing No.HR-55E-0121)
... Respondents
Date of institution : 19.05.2011
Reserved on : 23.02.2017
Date of Decision : 27.02.2017
AWARD
1. These two claim petitions are filed under Section 166 of the Motor Vehicle's Act, 1988 for grant of compensation.
2. The proceedings were initiated on filing of the Detailed Action Report (DAR) by the Investigating Officer. However, both the claimants preferred to file their independent claim petitions, as a result of which the DAR was clubbed with the claim petitions.
3. Soon after filing of the Claim Petition No. 4255/16, on 12.09.2011, both the Claim Petitions were clubbed and by the subsequent order of 27.09.2016, it was further clarified that petition bearing Suit No. 4068/16, titled as Smt. Laxmi Sajwan & Anr. Vs. Smt. Shakuntala & Ors. would be treated as the main petition and the other petition bearing Suit No. 4255/16 shall be treated as the connected petition. It was further clarified that all the proceedings conducted in the main petition shall also be read in the connected petition.
4. Brief facts, as stated in the claim petition No. 4255/16 of Sh.
Himanshu (an eye witness to the accident) are that on 07.02.2011, this claimant and one Sh. Anurag Sajwan (now deceased) were travelling in Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 4/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
a Tata Sumo vehicle bearing Registration No. DL-IVB-4247 as they were going to their office namely M/s V. Customer Services Pvt. Ltd., at Mohan Co-operative Industrial Area.
5. It is further stated that the driver of the Tata Sumo was driving the same in a rash and negligent manner and at a fast speed.
6. Claimant has stated that he and other co-passengers had asked the driver not to drive in such a manner but he did not care and at about 5.10 a.m., when the said vehicle reached near Mohan Co- operative Metro Station, it struck against a stationary truck. Due to this forceful impact, the driver and another passenger namely Mr. Anurag Sajwan died on the spot and claimant Mr. Himanshu sustained multiple grievous injuries and he was removed to Trauma Center, AIIMS hospital by the PCR.
7. The case of the claimant is that the accident took place due to rash and negligent driving of the driver of the Tata Sumo vehicle i.e. DL-IVB-4247 owned by respondent no.2 and insured by respondent no.3.
8. The claimant Mr. Himanshu has claimed a compensation of Rs.
10 lacs with interest at the rate 12 % per annum from the date of filing of claim petition till its realization.
9. The claimant Sh. Himanshu had initially filed his claim only against Insurer of the Tata Sumo as Respondent no.1, its owner as respondent no.2 and the LRs of deceased driver as Respondent no.3.
10. Though the driver, owner and insurer of the truck were shown as respondent no. 4, 5 and 6 respectively in the amended memo of parties filed subsequently but the claim petition was never amended to seek any relief against them.
11. It is noteworthy that the Claim Petition bearing no.4068/16 titled as Smt. Laxmi Sajwan & Ors. Vs. Smt. Shakuntala & Ors. is filed Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 5/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
against six respondents namely LRs of the deceased driver of the Tata Sumo bearing no. DL-1VB-6247 Smt. Shakuntala, owner of the Tata Sumo as Respondent no.2, Insurer of the Tata Sumo as Respondent no.3, owner of the truck bearing no. HR-55E-0121 as Respondent no.4 and driver of the truck as Respondent 5 and Insurer of the truck as Respondent no.6.
12. They have claimed a compensation of Rs.1 Crore from respondents jointly severally with interest 9% p.a. from filing of claim petition till realization.
13. The widow of the deceased driver of Tata Sumo, Smt. Shakuntala was proceeded ex-parte on 07.07.2015.
14. The owner of the Tata Sumo did not file any written statement.
15. Only Respondent No. 3, the Insurer of the Tata Sumo, contested the claim petition by filing its written statement.
16. The defence of Respondent no. 3 in written statement is that the Tata Sumo vehicle was being driven properly by the deceased driver and the accident occurred due to negligence of the driver of the truck bearing no. HR-55B-0121 which was parked on the centre of the road without any indicators.
17. All other contents of the Claim Petition were denied. However, the factum of insurance of the Tata Sumo on the date of accident was admitted.
18. Respondent no. 4 Mr. Deepak Khullar, the owner of the truck was proceeded ex-parte on 17.02.2016 and the driver of the truck was also proceeded ex-parte on 07.07.2016.
19. The details of respondent no. 6 are on record in the form of an application filed by Mr. Deepak Khullar namely Reliance General Insurance but the same was not pressed to implead the said insurer as a party respondent.
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 6/23& & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
20. From the pleadings of parties, following issues were framed in Claim petition of Smt. Laxmi Sajwan No. 4068/15:-
1.Whether deceased Anurag Sajwan died in an accident on 07.02.2011 caused by Vehicle bearing no. HR-55E-0121, due to rash and negligent driving of driver, respondent no.1 & 5, owned by respondent no.2 & 4 and insured with respondent no. 3 & 6? OPP.
2.Whether the petitioners are entitled for compensation? If so, to what amount and against which of the respondents ?
3. Relief?
21. In these issues, vehicle No. DL-IVB-6247 is not mentioned but that will not make any difference because issue covers negligence of Respondent No.1 who was driver of tata sumo DL-IVB-6247.
22. In claim petition of Sh. Himanshu which is Suit no. 4255/16, following issues were framed:-
1. Whether injured Sh. Himanshu sustained injuries in an accident on 07.02.2011 caused by Vehicle bearing no. DL-IVB-6247, due to rash and negligent driving of driver, respondent no.3, owned by respondent no.2 and insured with respondent no.1? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and against which of the respondents ?Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 7/23
& &
4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
3. Relief.
23. In these issues, negligence of driver of truck bearing no. HR-55E-
0121 is included but claimant had made no allegation of negligence on its driver. However, negligence of driver of Tata Sumo DL-IVB-6247 is covered as it is in issue whether accident was due to negligence of respondents no.1 and 5.
Claim of Ms. Laxmi Sajwan & Anr.
24. The mother of the deceased Smt. Laxmi Sajwan entered the witness box as PW1 and stated that the deceased was aged about 21 years and was working with M/s. V Customer Services Pvt. Ltd. as Customer Care Associate at a monthly salary of Rs. 13,650/-. She has also stated that the deceased was also pursuing BBA from Guru Jambheshwar University of Science & Technology which would have added to his qualifications and his income would have been doubled if the deceased had not died in the accident. She proved the following documents in support of her claim petition:-
1. Ex. PW2/1: Her voter I-card,
2. Ex. PW2/2: Job Offer letter given to Sh. Anurag Sajwan (deceased) for the post of Customer Care Associate on 11.03.2008 by M/s V.Customer services India Private Limited.
3. Ex. PW2/3: Final Report Form under Section 173 Cr.P.C resulting in Untrace Report.
4. Ex. PW2/4: The Death Certificate of the deceased Sh.
Anurag Sajwan.
5. Ex. PW2/5: The Account Statement maintained by late Sh.Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 8/23
& & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
Anurag Sajwan in Standard Chartered Bank.
6. Ex. PW-2/6: Mark Sheets of Sh. Anurag Sanwan (deceased) issued by Guru Jambheshwar University of Science and Technology.
7. Ex. PW-2/7: No Dues Certificate given by Oriental Bank of Commerce.
25. In cross examination by Counsel for Insurance Company, PW-1 deposed that the income of the deceased at the time of his death was Rs.13,000/- per month and as per the appointment letter, the salary was Rs. 9700/- per month.
26. It also came on record during cross examination that the deceased had taken educational loan to fund his studies and the father of the deceased was paying the installments.
27. PW-1 also deposed that the father of the deceased was working as Head Cashier in Oriental Bank of Commerce but unfortunately expired during pendency of this claim petition in August, 2011. She denied the suggestion that EMIs were being paid from the salary of the deceased.
Claim of claimant Mr. Himanshu:
28. Claimant Mr. Himanshu stated in his evidence by way of affidavit that at the time of accident, he was employed in M/s. V Customer at a monthly salary of Rs. 10,000/- and due to this accident he could not attend his work for 9 months. He has stated that he has spent Rs. 2,50,000/- on his treatment, Rs. 50,000/- on special diet, Rs. 40,000/- on conveyance, Rs. 80,000/- on attendant and nursing care and in Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 9/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
future would spend Rs. 2,00,000/-. He relied on four documents namely:-
1. Ex. PW1/1: Medical Bills and other receipts for medical treatment.
2. Ex. PW1/2: Discharge Summary of JPN Apex Trauma Center, AIIMS.
3. Ex. PW-1/3: Pay Slip for the month of March 2014 issued by M/s RAMP Green Solution Pvt. Ltd. and
4. Ex. PW-1/4: Termination Letter dated 16.06.2014 along with letter of Appointment dated 29.03.2010.
29. The stand of Insurance Company in the written statement in this case is also same as in the other claim petition that the accident occurred due to negligence of the driver of the truck and not due to negligence of the deceased driver of the Tata Sumo.
30. In cross examination, the claimant deposed that at the time of accident, his salary was Rs.10,000/- per month. He also admitted that as per bank statement Ex. PW1/R1, the monthly salary is shown as Rs. 6500-7000/- per month but he volunteered that he was getting vouchers for redemption which added upto 10,000/- per month. However, he could not give any documentary proof of the vouchers that he was receiving. He stated that he had to remain on medical leave for six months but admitted that he has not filed any office record to show that he was on leave for this period.
31. Other suggestions contrary to his case were also denied.
32. No other witness was examined by the claimants and no witness was examined by the respondents.
33. On the basis of pleadings of parties, evidence on record and Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 10/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
arguments addressed, issue wise finding are as under:
Issue No.1:-
34. Whether Mr. Anurag Sajwan met with fatal injuries and Mr. Himanshu suffered grievous injures in an accident which was caused due to rash and negligent driving of respondent no.1/driver of Tata Sumo or whether responden tno.5/driver of the Truck was also negligent in causing the accident is to be determined.
35. The onus of this issue is always on the claimants.
36. Admittedly, the parents of the deceased were not eye witness to the accident and they have not examined any other eye witness to prove that the accident was caused due to composite negligence of respondent no.1 and respondent no.5.
37. On the other hand, the claimant Mr. Himanshu was traveling in the same Tata Sumo and he is an eye witness to the accident. He has stated that the driver of the Tata Sumo was driving the same in a rash and negligent manner and at a fast speed. He has stated that he and other co-passengers had asked the driver not to drive in such a manner but he did not care and at about 5:10 a.m. near Mohan Co-operative Metro Station hit Tata Sumo against a standing truck.
38. According to this claimant who is an eye witness, the accident occurred due to rash and negligent driving of respondent no.1.
39. This is his case in pleadings as well in his evidence.
40. It is noteworthy that though the Insurance Company of the Tata Sumo had taken a specific defence in written statement that the accident was caused due to negligence of the driver of the Truck/respondent No. 5 and the issue was also whether accident was due to negligent of driver of Tata Sumo and driver of Truck, but not even a single suggestion was given when the eye witness entered in the witness box that the accident was due to negligence of driver of Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 11/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
the Truck.
41. Therefore, in cross examination, the Insurance Company /respondent no.3 gave up its case that the accident occurred due to negligence of respondent no.5 and not due to negligence of respondent no. 1.
42. At the time of arguments, the stand of respondent no.3 was that there is no statutory defence and all the documents are in order.
43. After investigation, the Final Report under Section 173 of Cr.P.C.
also resulted in Untrace Report due to death of driver of the Tata Sumo and it also notes that the front and rear indicator lights of the Truck were switched on at the time of accident.
44. All these circumstances show that the accident would not have happened but for the negligence of driver of the Tata Sumo / respondent no.1.
45. This issue is therefore answered holding that the deceased Mr. Anurag Sajwan suffered fatal injuries and claimant Mr. Himanshu suffered grievous injuries in a road traffic accident which was caused due to the rash and negligent driving of respondent no.1.
46. Even otherwise also, in the case of composite negligence, the victims have a choice to claim compensation from any one of the tort- feaseres. In "T.O. Anthony Vs. Karvarnan & Ors. (2008) 3 SCC 748", it is held by the Hon'ble Supreme Court as under:
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 12/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
Compensation payable to claimants in claim petition no. 4068/16 namely Smt. Laxmi Sajwan & another.
47. The deceased Mr. Anurag Sajwan was working as a Customer Care Associate with M/s V. Customer Services India Pvt. Ltd.
48. In the month of January 2011, the deceased was given a salary of Rs.13,650/-. This is evident from the bank statement of the deceased which is Ex. PW-2/5. This is reasonable because the salary of the deceased at the time of appointment as on 11.03.2008 was Rs. 9,770/- per month which would have increased to Rs.13,650/- by February, 2011.
49. The age of the mother of the deceased, at the time of accident was around 39 years (As per Ex. PW-1/1, her age as on 01.01.1994 was 22 years). As per Ex. PW-1/1, her age as on 01.01.1994 was 22 years.
50. The multiplier, as provided by the Hon'ble Supreme Court in the case of Sarla Verma Vs. DTC AIR, 2009 SC 3104, would be of 15.
51. Admittedly, the deceased was a bachelor and therefore 50% of Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 13/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
the income i.e. 6,825/- would be deducted for personal expenses.
52. The deceased was a permanent employee since 2008. His income was increasing gradually, therefore, claimants are entitled to future prospects to an extent of 50% i.e. Rs.6825/-. Therefore, the assumed income of the deceased would be Rs.13650/- + Rs.6825/- minus Rs.6825 = Rs.13,650/-.
53. Applying the multiplier of 15, the financial loss to the claimants would be Rs.24,57,000/- (Rs. 13650X12X15).
54. For cremation charges, claimants are entitled to Rs.25,000/-, for loss of estate Rs.50,000/- and for loss of love and affection Rs.1,00,000/-.
55. Therefore, the total compensation payable to the claimants would be Rs.26,32,000/-.
56. The claimants would be entitled to get this compensation with interest @ 9% p.a. from the date of filing of claim petition which is 29.04.2011 till its realization.
57. The compensation will be deposited by the HDFC Ergo Insurance Company, the insurer of Tata Sumo DL-IVB-6247. The compensation would be deposited by the insurance company with this Tribunal.
58. The financial needs of the claimants could not be ascertained and they could not be directed to produce their passbooks with IFS code , residence proof and photographs as they never appeared before this Tribunal at the time of arguments. Therefore, the mode and manner of disbursal of compensation will be decided after recording financial needs of claimants.
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 14/23& & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
59. The claimants will appear before this Tribunal on 15.03.2017 for recording their statements with regard to financial status. They will also file copy of passbook with IFS code, residence proof, photographs and specimen signatures on the said date.
60. The particulars of Form-IV of the Modified Claims Tribunal Agreed Procedure as under:
1. Date of the accident 07.02.2011
2. Date of intimation of the accident by 09.02.2011 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by Not available the Investigation Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not available 173 Cr.P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 29.03.2011 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the On the first date Insurance Company. (Clause 11) when DAR was filed, insurance company was not present and notice was issued for next date. In the meanwhile, the claim petition was filed and DAR was got tagged with the main petition.
7. Date of service of DAR on the 29.03.2011 claimant(s). (Clause 11)
8. Whether DAR was complete in all No Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 15/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
respects? (Clause 16)
9. If not, state deficiencies in the DAR The documents were not verified
10. Whether the police has verified the No documents filed with DAR? (Clause 4)
11. Whether there was any delay or Yes. The DAR was deficiency on the part of the not filed within 30 Investigating Officer? If so, whether days. There was a any action / direction warranted. delay of 22 days.
Considering the
detailed report, no
action or direction
is warranted.
12. Date of appointment of the Not available
Designated Officer by the Insurance
Company. (Clause19)
13. Name, address and contact number of Not available
the Designated Officer of the
Insurance Company. (Clause 19)
14. Whether the Designated Officer of Not applicable as the Insurance Company submitted his independent claim report within 30 days of the DAR? petition was filed (Clause 21) within 30 days of the filing of DAR
15. Whether the Insurance Company No, The insurance admitted the liability?, if so, whether company did not the Designated Officer of the admit its liability Insurance Company fairly computed and contested the the compensation in accordance with matter. The law (Clause 92). insurance company had taken a defence that the accident was not due to negligence of driver of vehicle insured by it.
16. Whether, there was any delay or There was delay in deficiency on the part of the filing of written Designated Officer of the Insurance statement. Since, Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 16/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
Company? If so, whether any action / the written direction warranted? statement was taken on record by the Ld. Predecessor, no action is warranted.
17. Date of response of the claimants to There was no offer.
the offer of the Insurance Company.
(Clause 23)
18. Date of award. 27.02.2017
19. Whether the award was passed with No the consent of the parties? (Clause
22)
20. Whether the claimants examined at Yes, a date has the time of passing of the award to been fixed for ascertain his / their financial appearance of condition? (Clause 26) claimants to record their statement.
21. Whether the photographs, specimen Yes, a date signatures, proof of residence and has been particulars of bank account of the fixed for injured / legal hairs of the deceased appearance taken at the time of passing of the of claimants award? (Clause 96) to record their statement.
22. Mode of disbursement of the award To be decided after amount to the claimant (Clause 28) recording next date of compliance of the award. statement of (Clause 30) claimant .
Next date of
compliance is
30.05.2017.
Compensation payable to claimant Sh. Himanshu in Claim Petition No.4255/16:-
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 17/23& & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
53. After the accident, the claimant was found to be suffering from injuries, "Moderate Head injury with left frontal contusion". He had remained admitted in JPNA Trauma Center, AIIMS from 07.02.2011 to 10.02.2011. The comments on Discharge Summary are that in view of Moderate Head injury, he had risk of persistent headache, seizures, hydrocephalus, deterioration of consciousness. He was adviced to visit casualty in case of Fever, repeated vomiting, seizures, decrease in consciousness, worsening/severe headache and was directed to get sutures removed on 14.02.2011 in any hospital.
54. Therefore, the claimant is entitled to a compensation of Rs.75,000/- for pain and suffering.
55. Further, the claimant has placed on record a bill of Rs. 50,000/- raised by Ashok Hospital on 01.05.2011. The claimant was admitted in this hospital on 28.04.2011 and discharged on 01.05.2011. As per receipt, a sum of Rs.25,000/- was deposited on 25.4.2011 but bill shows entire amount of Rs.50,000/- as due. There is no treatment record of Akash Hospital connecting treatment to accidental injuries. Therefore, no compensation can be given to the claimant for his treatment in Akash Hospital.
56. There are receipts of Mahajan Imaging Center but no prescription slip is on record advising X-ray. Therefore, in the absence of supporting documents, claimant is not entitled to compensation for treatment after his discharge from AllMS.
57. However, considering the nature of injuries, it can be assumed that the claimant would have spent some amount on medicines. Therefore, the claimant is awarded Rs.10,000/- for medicines etc keeping in mind Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 18/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd. injuries to the moderate head injury.
58. The claimant is also entitled to a compensation of Rs.10,000/- towards special diet and conveyance.
59. Considering the nature of injuries suffered by the claimant, it can be safely assumed that this claimant would have suffered loss of working capacity atleast for a period of 4 months. The income of this claimant at the time of accident was Rs. 7000/- per month .
60. Therefore, for loss of wages, claimant is awarded a compensation of Rs.28,000/-.
61. Considering the nature of injuries, it can be safely assumed that the claimant would have availed the services of an attendant at least for a period of three months.
62. In Delhi Transport Corporation and Anr. v. Lalita: AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court had observed as under:-
".........A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463)The services of a wife and mother are worth more than those of a house-keeper because she is in constant attendance and does many more things that an house-keeper. (Regan v. Williamson (1976) 2 All E.R.241)."
63. This judgment was again quoted with approval by the Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 19/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd. Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No.762/11 dated 04.07.12.
64. Therefore, claimant is awarded a compensation of Rs.6,500/-X3 =19,500/- towards attendant's charges for 3 months, keeping in view that the minimum wages prevailing at the time were Rs. 6,422/- per month.
65. Therefore, the total compensation payable to the claimant would be Rs.1,42,500/- which would be paid with interest @ 9% p.a. from filing of claim petition which is on 08.07.2011 till its deposit.
66. The compensation as noted above would be paid by respondent no.3 being the Insurer of Tata Sumo No.DL-1VB-6247.
67. The particulars of Form-IV of the Modified Claims Tribunal Agreed Procedure as under:
1. Date of the accident 07.02.2011
2. Date of intimation of the accident by 09.02.2011 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by Not available the Investigation Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not available 173 Cr.P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 29.03.2011 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the On the first date Insurance Company. (Clause 11) when DAR was Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 20/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
filed, insurance company was not present and notice was issued for next date. In the meanwhile, the claim petition was filed and DAR was got tagged with the main petition.
7. Date of service of DAR on the 29.03.2011 claimant(s). (Clause 11)
8. Whether DAR was complete in all No respects? (Clause 16)
9. If not, state deficiencies in the DAR The documents were not verified
10. Whether the police has verified the No documents filed with DAR? (Clause 4)
11. Whether there was any delay or Yes. The DAR was deficiency on the part of the not filed within 30 Investigating Officer? If so, whether days. There was a any action / direction warranted. delay of 22 days.
Considering the
detailed report, no
action or direction
is warranted.
12. Date of appointment of the Not available
Designated Officer by the Insurance
Company. (Clause19)
13. Name, address and contact number of Not available
the Designated Officer of the
Insurance Company. (Clause 19)
14. Whether the Designated Officer of Not applicable as the Insurance Company submitted his independent claim report within 30 days of the DAR? petition was filed (Clause 21) within 30 days of the filing of DAR
15. Whether the Insurance Company No, The insurance admitted the liability?, if so, whether company did not Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 21/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
the Designated Officer of the admit its liability Insurance Company fairly computed and contested the the compensation in accordance with matter. The law (Clause 92). insurance company had taken a defence that the accident was not due to negligence of driver of vehicle insured by it.
16. Whether, there was any delay or There was delay in deficiency on the part of the filing of written Designated Officer of the Insurance statement. Since, Company? If so, whether any action / the written direction warranted? statement was taken on record by the Ld. Predecessor, no action is warranted.
17. Date of response of the claimants to There was no offer.
the offer of the Insurance Company.
(Clause 23)
18. Date of award. 27.02.2017
19. Whether the award was passed with No the consent of the parties? (Clause
22)
20. Whether the claimants examined at Since the time of passing of the award to compensation is for ascertain his / their financial loss of wages, condition? (Clause 26) attendant charges etc. which the claimant has actually suffered the compensation will be released without any pre condition of FDRs.
21. Whether the photographs, specimen Not signatures, proof of residence and applicable.
particulars of bank account of the
Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 22/23
& &
4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.
injured / legal hairs of the deceased
taken at the time of passing of the
award? (Clause 96)
22. Mode of disbursement of the award By release of
amount to the claimant (Clause 28) cheque. Next date
next date of compliance of the award. of compliance is
(Clause 30) 30.05.2017.
68. Copy of this award be given to the parties free of cost and a copy of award be also sent to DLSA, South East, Delhi as well as to the Ld. Metropolitan Magistrate concerned.
69. List on 15.03.2017 for recording the statements of claimants in Claim Petition No.4068/16 (Smt. Laxmi Sajwan) and on 30.05.2017 for compliance.
Announced in open Court (ARUN BHARDWAJ) on 27th February, 2017. PO-MACT-01 (South-East) Saket Court/ New Delhi Suit No. 4068/16 Smt.Laxmi Sajwan Vs. Shakuntla Page No. 23/23 & & 4255/16 Sh. Himanshu Vs. HDFC Ergo Egn Co. Ltd.