Delhi District Court
Smt. Babli Aged About 32 Years vs Sh. Bijendra Kumar S/O Sh. Salek Chand ... on 29 April, 2011
IN THE COURT OF SH. ARVIND KUMAR : PRESIDING OFFICER: MACT
KARKARDOOMA COURTS : DELHI
M.A.C. Petition No: 823/10
Unique Case ID No. : 02402C0645012007
Date of institution : 26.09.2007
Reserved for orders : 29.03.2011
Judgment pronounced on : 29.04.2011
Smt. Babli aged about 32 years
W/o Sh. Sudhir Kumar
R/o H. No. H-10, Gali No. 30,
Jayaprakash Nagar, Bhajanpura
Delhi-110053
P.S. Bhajanpura ...Petitioner
VERSUS
1. Sh. Bijendra Kumar S/o Sh. Salek Chand Driver
R/o Village : Barnawa, P.O. Khars
Meerut, Uttar Pradesh
Second Address : C/o Sh. Kanwal Kishore
D-1/152, Bhajanpura, Nehru Vihar, Delhi-110053
2. Sh. Kanwal Kishore S/o Sh. Gopal Dass Regd. Owner
C/o Sh. Rampal Singh
R/o D-1/152, Bhajanpura, Nehru Vihar, Delhi-10053
Second Address : R/o 2 M 86 NIT, P.S. Faridabad,
Distt. Faridabad (Haryana)
3. National Insurance Co. Ltd. Insurer
Bhagwan Mahavir Marg, Railway Road,
Baraut, Distt. Baghpat, U.P. 250611 ......Respondents
JUDGMENT
1. The petitioner has filed present claim u/s 166 & 140 of M.V. Act claiming compensation of Rs.10,00,000/- (Rs. Ten Lacs) for the injuries suffered by the petitioner in the roadside accident occurred on 30.08.2007.
2. The brief facts, as stated by petitioner are that on 30.08.2007, the petitioner was going to Meerut on a motorcycle as a pillion rider and when the motorcycle reached near Delhi By Pass Road, Jahid Pur PAC meerut, a Dumper Tata Truck bearing no. HR-38C-3539 driven rashly and negligently came from opposite side and hit the motorcycle. As a result of which the petitioner as well as M.A.C. Petition No. 823/10 Page 1/7 Sh. Dharampal Singh who was driving the motorcycle, fell down and they came under the truck as the truck overturned. Sh. Dharampal succumbed to injuries suffered in the accident and the petitioner suffered multiple fracture on her right humerus, ulna, clavicle and scapula and was treated in Narayan Superspeciality Hospital, Meerut and thereafter in LNJP, Delhi.
3. The respondent no. 1 filed its written statement denying the involvement of the vehicle in the accident.
4. The respondent no. 2 did not contest the case and was proceeded ex-
parte vide order dt. 15.07.2009.
5. The respondent no. 3 / insurance company filed written statement stating that the vehicle no. HR-38C-3539 (Dumper) was insured vide policy no. 361202/31/06/6705395, valid for the period 14.02.2007 to 13.02.2008.
6. On the basis of the pleadings following issues were framed:-
1. Whether Smt. Babli sustained injuries due to rash and negligent driving of Dumper Tata Truck No. HR-38C-3539 by R-1? OPP.
2. Whether the alleged accident was not caused by R-1 with the alleged vehicle and if so, to what effect?OPP
3. Whether the petitioner is entitled to get any compensation, if so, from whom and of what amount?
4. Relief.
7. The petitioner examined himself as PW-1 and tendered his affidavit in evidence. On the other hand, respondents did not examine any witness.
8. I have heard counsels for the parties. My findings are as under:
ISSUE NO. 1 and 2 are connected hence are taken together
9. The petitioner examined herself as PW-1 and deposed that on 30.08.2007, the petitioner was going to Meerut on a motorcycle as a pillion rider and when the motorcycle reached near Delhi By Pass Road, Jahid Pur PAC M.A.C. Petition No. 823/10 Page 2/7 Meerut, a Dumper, Tata Truck bearing no. HR-38C-3539 driven rashly and negligently came from opposite side and hit the motorcycle. As a result of which she as well as Sh. Dharampal Singh, who was driving the motorcycle, fell down and they came under the truck as the truck overturned. Sh. Dharampal succumbed to injuries suffered in the accident and she suffered multiple fracture on her right humerus, ulna, clavicle and scapula and was treated in Narayan Superspeciality Hospital, Meerut and thereafter in LNJP, Delhi. Petitioner exhibited the copy of FIR, Site-plan and copy of charge sheet as PW-1/4 (colly).
10. I have gone through the FIR, site-plan and testimony of PW-1. It is clear that the accident occurred because of the negligence of the driver of the Truck bearing no. HR-38C-3539. The FIR, site-plan and testimony of PW-1 taken together fully establish that the injuries were sustained by petitioner involving Truck bearing registration No. HR-38C-3539, in a road accident. There is nothing on record to dispel the inference that petitioner sustained injuries in a road accident which occurred on 30.08.2007 because of rash and negligent driving of vehicle bearing no. HR-38C-3539 being driven by the respondent No. 1. The respondents did not lead any evidence in rebuttal. Issue no. 1 and 2 are accordingly decided in favour of petitioner and against the respondents.
ISSUE NO. 311. Petitioner deposed that she suffered multiple fracture on right humerus, ulna, clavicle and scapula. She was treated in Narayan Super Speciality hospital, meerut and thereafter in LNJP. Petitioner further deposed that she remained hospitalised in LNJP from 31.08.2007 to 21.09.2007. It is further deposed that she was doing a private job in Ghonda, Delhi and was earning Rs. 4500/- per month and she also engaged an attendant to whom she was paying Rs. 3500/- p.m. and she incurred a sum of Rs. 20,000/- on treatment, Rs. 20,000/- on conveyance and Rs. 50,000/- on special diet. It is also deposed that she suffered permanent disability of 90%.
12. Ld. counsel for petitioner relied upon following judgments :
1. Pradeep Kumar vs National Insurance Co. Ltd. and ors., 2010 ACJ 141, decided by Hon'ble High Court of Delhi.M.A.C. Petition No. 823/10 Page 3/7
2. Kanta Kumari vs Ajit Singh and ors., 2010 ACJ 1410, decided by Hon'ble High Court of Delhi.
3. Oriental Insurance Co. Ltd. vs Satish Sharma and ors., MAC application. No. 350/2005 decided by Hon'ble High Court of Delhi.
4. Kathwal Hussain Peera vs D. Ramalingeswara Reddy and anrs., 2010 ACJ 226, decided by Hon'ble High Court of Andhra Pradesh.
5. Sanjay Verma vs Haryana Roadways, 2008 ACJ 1481, decided by Hon'ble High Court of Uttarakhand.
6. New India Assurance Co. Ltd. vs Ranglal Punju Nikam and ors., 2007 ACJ 1483, decided by Hon'ble High Court of Judicature at Bombay, Aurangabad Bench.
13. I have gone through the judgments cited by Ld. counsel for petitioner. In the recent judgment of Raj Kumar Vs. Ajay Kumar, 2011, ACJ-1, Hon'ble SC enumerated the principles for granting the compensation in the case where the petitioner has suffered disability. In the judgment " Raj Kumar Vs. Ajay Kumar and another", ACJ-2011(Vol. I), Hon'ble Apex Court observed as under:-
" Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability [sic disability] ( this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 per cent. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per M.A.C. Petition No. 823/10 Page 4/7 cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100 per cent as in the case of a driver or carpenter, nor 60 per cent which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of loosing his hand. Sometimes the injured- claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 per cent (or even anything more than 50 percent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
14. The discharge slip issued by LNJP hospital shows that the petitioner was admitted on 31.08.2007 and was discharged on 21.09.2007. It is recorded in the discharge slip that petitioner suffered fracture of right humerus, right ulna, right clavicle and right scapula. Bills are for Rs. 6134/-. The disability certificate issued by GTB hospital shows that petitioner suffered disability of 90% in relation to right upper limb. The petitioner although stated that she was doing a private job in Ghonda, Delhi but there is nothing on record to substantiate the averments made by petitioner. Therefore minimum wages for unskilled workman at the time of accident can be taken into consideration. The minimum wages at the time of accident were Rs. 3700/- (approx). The disability in relation to right upper limb is M.A.C. Petition No. 823/10 Page 5/7 90% and therefore the disability in relation to whole body can be taken to be 45%. The age of the petitioner was 32 years at the time of accident. Therefore the loss of future earning due to disability can be calculated by multiplying the annual income with percentage of disability and with multiplier of 16. The total loss in future earning on account of disability comes to Rs. 3,19,680/- (3700 x 12 x 0.45 x 16). It can be easily deduced from the material on record that the petitioner must have remained out of normal routine work for about 5-6 months and must have required an attendant for about 1-2 months. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1 Compensation towards pain and sufferings Rs. 95,000/- 2 Compensation for loss of amenities, enjoyment Rs. 90,000/- and disfiguration 3 Loss of earning capacity due to injuries Rs.3,19,680 /- 4 Loss of earning of petitioner for six months Rs. 22,200/- 5 Expenses towards medical bills Rs. 6,134/-
6 Compensation towards conveyance and special diet Rs. 15,000/- (without bills) 7 Attendant charges @ Rs. 3500/- per month for two months Rs. 7,000/-
Therefore, in my opinion the petitioner is entitled to Rs. 5,55,014/- (rounded off to Rs. 5,55,000/-) which shall be the just compensation to petitioner.
LIABILITY
15. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 3 is liable to pay the compensation amount.
16. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF:-
17. While granting the relief to petitioner, I am also to award the interest @ 7.5% p.a on the above said amount of Rs. 5,55,000/- from the date of filing of petition till realization of the amount. Issue no. 3 is answered accordingly.
M.A.C. Petition No. 823/10 Page 6/718. For the aforesaid reasons, I pass the following award:-
AWARD
19. In view of the above the petition is allowed. The respondent No. 3, insurance company is liable to pay the compensation of 5,55,000/-, inclusive of interim compensation already awarded. The insurance company is hereby directed to pay a compensation of Rs. 5,55,000/-. The respondent no. 3 shall also pay interest @ 7.5% p.a. (except for the period not specifically allowed) on the total compensation amount from the date of petition till realization to the petitioner.
20. Compensation amount may be deposited within one month from today, in the court.
21. The awarded amount shall be released to petitioner with immediate effect.
22. A copy of the award be given free of cost to the parties concerned. List on 07.07.2011 for compliance.
Announced in the open (Arvind Kumar)
court on 29.04.2011 Presiding Officer
Motor Accident Claim Tribunal
Karkardooma Courts,Delhi
M.A.C. Petition No. 823/10 Page 7/7