Delhi District Court
Nupur Jain vs Rahul on 18 August, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA,
KKD, DELHI
MAC No. 770/16
Nupur Jain
D/o Sh. Manoj Kumar Jain
R/o DS-129, Street No. 7,
Bhola Nath Nagar, Shahdara,
Delhi -110032 Petitioner
Versus
1. Rahul
S/o Sh. Shish Ram Singh
R/o 28/175, Kasturba Nagar,
Shahdara, Delhi -32
Also at 2/120, Old Gurudwara Gali,
Kasturba Nagar, Shahdara, Delhi Driver
2. Mamta
D/o Sh. Inderjeet Singh
R/o 24/A-7, Gali no. 3,
Chajjupura Colony, Shahdara,
Delhi-32 Registered Owner
3. United India Insurance Co. Ltd.
C/o C-1, Main Road, Kanti Nagar,
Near Bullet Showroom,
Delhi -110051 Insurance company
4. Radha
W/o Sh. Late Sh. Raju
R/o 2/120, Old Gurudwara Gali,
Kasturba Nagar, Shahdara, Delhi -32 Present owner
(Not summoned)
...Respondents
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 1/27
Date of Institution : 01.08.2013
Date of Arguments : 21.05.2018
Date of Judgment : 18.08.2018
JUDGMENT:
1. Vide this judgment, I shall dispose off this petition filed under section 166 r/w 140 M.V. Act by the injured / petitioner Nupur Jain with the allegations that on 25.3.2013 at about 8.30 pm, injured Nupur Jain alongwith her friend Yamini Katyan was going by her scooty bearing No. DL-13 SG- 9844 from cross River Mall towards Vivek Vihar and passing through red light near Suraj Mal Vihar, Transport Authority, Delhi, when suddenly the offending vehicle bearing No. DL-7SAM- 5177, being driven by the respondent No. 1 in rash and negligent manner and without observing traffic rules, hit her vehicle and caused this accident which resulted into sustaining multiple grievous injuries by her. It is further stated that both injured were removed to Pushpanjali Hospital by passersby and thereafter referred to Pushpanali Crosselay Hospital after initial treatment and then referred to Max Hospital where she got treatment for 5-6 days. On 1.4.2013, injured was referred to Indraprastha Apollo Hospital and three brain surgeries were performed upon her and last one was performed on 30.9.2013 but still her condition is not good. It is further stated that injured has lost eye vision of her right eye and vision of left eye has deteriorated. She has suffered six fractures in skull and remained hospitalized and under treatment for a long term. It is further stated that injured was aged about 24 years and was doing CA, but her life has become miserable by this accident and her parents have spent approximately Rs. 25 Lacs MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 2/27 on her treatment, whereas this accident took place by rash and negligent driving of offending vehicle by respondent. Petitioner have claimed Rs. 2 Crores compensation alongwith interest @ 18 % per annum from the respondents.
2. Respondents No. 1 i.e. Driver was duly served and even appeared through counsel, but his opportunity to file WS was closed vide order dated 6.6.2014.
2.1. Respondent No. 2 Ms. Mamta is registered owner of vehicle and has filed her WS thereby stating that this petition is not maintainable being without cause of action, but it is stated that offending vehicle was insured with Insurance company and insurance company is liable to pay compensation, if any. It is further stated that she has already sold out the vehicle to one Kamal Kumar but he did not get the ownership transferred in his name and there is no cause of action to file this claim against her. Respondent has denied all the allegations of the petitioner and has prayed that this petition is liable to be dismissed.
2.2. Respondent No. 3 i.e. Insurance company has filed its WS thereby stating that offending vehicle was insured with insurance company in the name of Smt. Mamta, but it is denied that respondent No. 1 caused this accident by his rash and negligent driving. It is further stated that this accident took place by the rash and negligent driving of victim herself and even there was a delay in investigation, due to insurance company is not liable to pay this compensation. It is further stated that injured was not holding a valid DL and was not MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 3/27 authorized to drive the vehicle due to this claim is liable to be dismissed.
3. From the pleading of the parties following issues are framed in the petition as under:
1. Whether the petitioner suffered injuries in the accident occurred on 25.03.2013 due to rash and negligent driving of vehicle bearing no. DL-7SAM-5177 being driver by respondent No.1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? OPP
3. Relief
4. PETITIONER'S EVIDENCE: To prove the case, PW1 Nupur Jain is the injured and has repeated her allegations levelled in the petition about the mode and manner of accident caused by respondent No. 1 while driving his vehicle in rash and negligent manner and hit against her scooty and resulted into sustaining multiple grievous injuries. She has deposed that she received treatment from Pushpanjali hospital, Pushpanjali Crosslay Hospital, Max Hospital and Apollo Hospital and three surgeries were performed on her which resulted into losing of her right eye vision and lowering of vision of left eye. It is further deposed that she suffered six fractures in her skull / brain and has suffered permanent disability which has deprived her a normal healthy life throughout life tenure. It is further deposed that she was fond of music and was a brilliant student and was doing CA course and would have MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 4/27 earned easily Rs. 15 Lacs per annum if not met with this accident. It is further deposed that she was aged about 24 years and has spent Rs. 25 lacs on her medicine, transportation and special diet. She has relied upon documents i.e. medical record Ex. PW1/1 and Mark A, medical bills and other bills Ex.PW1/2 (colly), educational documents Ex.PW1/3 and DAR is Ex.PW1/4.
4.1. During cross examination, she has admitted that she was wearing helmet at the time of this accident. It is further deposed that she had cleared CPT examination for CA course at the time of accident. She has denied that she was not wearing helmet or this accident took place by her negligence. It is admitted that she has not claimed reimbursement of medical bills from any other source. It is further deposed that she has appeared before the court with assistance of her father. She could not say as to whether she assessed only temporary disability @ 79 %.
4.2. PW2-A Dr. Parmod Kumar Sahu has proved the permanent disability certificate of injured as Ex.PW2/A, as per which, injured suffered 100% permanent disability in relation to her eyes, 75% in relation to mild heamparasis left and cognitive assessment of 70% for her neurological assessment (which comes to 75 %). Disability is of permanent nature.
4.2.1. During cross examination, he has admitted that one eye of petitioner is completely damaged and second is upto the extent of half. It is denied that injuries suffered by injured are not in consonance of accident.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 5/27 4.3. PW3 Radhey Shyam is an eye witness and has deposed that about 3-4 years back in the month of February - March, he was coming from Shahdara and reached in front of licensing authority near Cross River Mall and was waiting to turn Red Light Green and saw that two girls were coming from Cross river mall side and were passing through red light on green signal when two boys came by motorcycle from the side of Canventer Market, Suraj Mal and jumped the red light and hit against the scooty of both girls. It is deposed that both injured were wearing helmets and fell down and sustained injuries. It is further deposed that both boys were on vehicle No. DL-7S-AM 5177. Police were called at the spot and he disclosed the number of both vehicles to police. It is further deposed that the impact of accident was so huge that kick of bike had broken but boys escaped with the vehicle by putting on rickshaw. He left the spot after furnishing his details to police.
4.3.1. During cross examination, he has deposed that he was coming by his Activa scooter and was waiting at red light at the time of accident. It is further deposed that accident took pace at about 7.30- 7.45 pm and has furnished number of both vehicles to police which reached at the spot after 15 minutes of this accident, but he did not call 100 number. It is further deposed that girl who sustained severe injuries was driving the scooty, but both riders of motorcycle were not wearing helmets. It is further deposed that his statement was not recorded after this accident and even no site plan was prepared at his instance. It is further deposed that motorcyclist was not stopped by anyone while escaping as all were busy in looking after the girls, but MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 6/27 did not remove them to hospital. It is denied that this accident took place by the fault of injured or that injured were driving the vehicle without helmet.
5. RESPONDENT'S EVIDENCE: Respondents have not examined any witness and RE was closed on 01.04.2016.
6. I have heard the arguments and perused the record. My Issue wise findings are as under:
ISSUE NO. 1 - The onus to prove this issue was upon the petitioner. To discharge this onus, petitioner has examined herself as PW1 and eye witness as PW3 and have repeated their allegations leveled in the petition. The onus to prove this rash and negligent driving by the driver of the offending vehicle is on the petitioners who have claimed this compensation. She was required to prove rash and negligence of driver to claim this compensation under section 166 of M.V. Act and legal proposition regarding it is well established. The law to this effect is relevant to be considered. It is held in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors. III (2007) ACC 54 (SC) that the insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under section 166 of the Act. A similar proposition has held in case titled DTC and Another v. Rajeshwari Sankar And Ors MAC. A. No- 442/2005 dated 25/5/13 that rash and negligence is supposed to be MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 7/27 proved to claim the compensation u/s 166 of M.V. Act. Even the Hon'ble High of Delhi in MAC App. No.200/2012 case titled United India Insurance Co. Ltd. V. Smt. Rinki @ Rinku & Ors dated 23/07/2012 that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). Even the similar proposition has been repeated in Oriental Insurance Company Limited v. Meena Variyal and Ors., (2007) 5 SCC 428, Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr., 1977 (2) SCC 441 and Surender Kumar Arora and Anr. v. Manoj Bisla and Ors., (2012) 4 SCC 552.
7. The mode and manner of proving the rash and negligent driving of the offending vehicle has also been considered in various other judgments and has held that the onus to prove the rash and negligent driving is not to be discharged beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 8/27 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
8. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the injured has to be decided in view of the above said legal proposition.
9. PW1 Nupur Jain is the main injured as well as witness to this accident and PW3 Radhey Shayam is the eye witness who have duly proved that on 25.3.2013 at about 8.30 pm, injured Nupur Jain alongwith her friend Yamini Katyan was going by her scooty bearing No. DL-13-SG- 9844 from cross River Mall side towards Vivek Vihar and was passing through red light near Suraj Mal Vihar, Transport Authority, Delhi, when suddenly the offending vehicle bearing No. DL- 7SAM-5177 being driven by the respondent No. 1 in rash and negligent manner and after jumping red light caused this accident which resulted into sustaining multiple grievous injuries by injured. It is further proved that injured was removed to Pushpanjali Hospital by passersby and thereafter was referred to Pushpanali Crosselay Hospital for initial treatment and then referred to Max Hospital where she got treatment for 5-6 days and, ultimately on 1.4.2013, injured was MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 9/27 referred to Indraprastha Apollo Hospital where three brain surgeries were performed upon injured and last one was performed on 30.9.2013. The testimony of PW1 is unrebutted on the aspect of rash and negligent driving of the offending vehicle by respondent No. 1. PW3 Radhey Shayam is eye witness of the accident and has duly corroborated the testimony of PW1 and stoodby his testimony despite lengthy cross examination by respondents that this accident took place by rash and negligent driving of offending vehicle by Respondent No. 1. He has categorically deposed that injured was also driving the scooty and was wearing helmet and was crossing red light on green signal and was driving in her right lane whereas Respondent No. 1 alongwith another rider came after jumping red light and hit against the scooty of injured and caused her multiple injuries. He has categorically deposed that this accident was result of jumping of red light and without helmet driving of the respondent No. 1. As such, the PW1 and PW3 have duly proved the fact of rash and negligent driving of offending vehicle by respondent No. 1.
10. Besides the testimony of PW1, Police have filed this DAR which has proved that Respondent No. 1 was apprehended in this case after lodging of this FIR and is also charge-sheeted. Injured sustained injuries and was subjected to medical examination against MLC which has proved that he sustained grievous injuries and remained under treatment on account of this accident. Treatment papers of injured have corroborated the mode and manner of injuries which were possible by this accident. Site plan was prepared by the police during investigation and has proved the location of the spot of accident and MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 10/27 also that in what negligent manner the respondent No. 1 jumped the red light to hit the vehicle of the victim in the extreme left of the road which was the driving lane of the injured. The offending vehicle was duly seized and released on superdari. The mechanical inspection report of the offending vehicle has proved the damage to the vehicle and report of vehicle of the injured has corroborated the impact and force of the hit that the body of the scooty of the injured was cracked and such damage to vehicle was possible only by this accident. As such, it stands proved that the Respondent No. 1 caused this accident by his rash and negligent driving and resulted into sustaining injuries by the injured. On the other hand, driver / respondent No. 1 has not lodged any complaint with higher authorities against his false implication to this case and rather has taken a vague defense that he did not cause this accident or that accident took place without specifying in what manner the injured was on fault which is no defence. Respondent No.1 is liable to pay this compensation being driver of this accident. Respondent No. 2 is the owner of the offending vehicle and is liable for this tortuous act of the driver. Though the respondent No. 2 Mamta is the registered owner, but she has taken a plea that she had already sold out this vehicle much prior to this accident, yet she is registered owner of the vehicle which is yet to be transferred in favor of subsequent owner, due to she shall be considered as owner of this vehicle in terms of Section 2 (30) of M.V. Act and shall be liable to pay compensation. As such, injured has proved the rash and negligent driving of the offending vehicle by the Respondent No.1 and issue No. 1 is decided in favor of the petitioner and against the respondents.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 11/27
11. ISSUE NO. 2 - The onus to prove this issue was also fixed upon the petitioner. Since the petitioner has proved that the Respondent No. 1 caused this accident by his rash and negligent driving, accordingly petitioner is entitled for compensation under various heads. Injured sustained injuries due to the claim of the petitioner has to be considered under different heads one by one.
12. The scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court in case titled Mr. R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd., 1995 AIR 755 in the following words as under:
Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit upto the date of trial; (iii) other material loss.
So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
13. Further, in Raj Kumar v. Ajay Kumar (2011) 1 SCC (Cri) 1161, the court has laid down the following criteria to determine the compensation in injury cases as under:
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 12/27
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earning on account of permanent disability.
(iii) Future medical Expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and /or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be 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 will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involved reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses-Item (ii) - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages- Items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/ deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability- Item (ii) (a).
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 13/27 In view of the above said law, the damages of the petitioners have to be decided under the following heads as under:
14. Reimbursement of medical expenses: Petitioner sustained multiple injuries including fractures to skull and permanent disability and medical documents have proved this fact. Injured has proved her medical papers Ex.PW1/1 to Ex.PW1/2(colly), as per which, she remained hospitalized during on 25/3/13 to 20/8/13. Thereafter on 29/9/13 to 16/10/13 and 9/11/13 to 14/11/13 and received treatment upto 27/1/14. She underwent 4 brain surgeries during this period and has lost vision of her one eye and half vision of other eye, besides suffering other permanent disability including lost of his brain ability and cognitive impairment @ 75%. As such, medical condition of the injured is pathetic. Admittedly, there is no reimbursement of all such medical bills and even these bills are not disputed, due to she is entitled for reimbursement of medical bills of Rs. 16,13,926/-.
15. Pain and Suffering: The petitioner has proved that she sustained grievous and multiple injuries and remained hospitalized for long time.
She received treatment from different Hospitals including Max and Apollo Hospital, and has proved her medical documents. Injured remained under treatment during the period from 23/3/13 to 27/1/14 and thereafter follow up treatment upto November, 2014. She also sustained 100% permanent disability towards orthalmology and 75% towards cognitive impairment. As such, her permanent disability was assessed @ 100%. PW2 has proved this disability certificate. It is not disputed fact that a person who sustained grievous injuries as well as MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 14/27 permanent disability and also went through such lengthy medical process is bound to suffer great pain and sufferings. As such, injured is entitled for compensation under this head.
15.1. However, to determine the quantum of pain and suffering, it is necessary to go through the law to this effect. It is held in Oriental Insurance Co. Ltd. v. Rupeshi Verma & Ors, MAC No-332/2014 dated 27/7/2017 that two cases are not alike but inflation should be taken into account while calculating damages. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274, the Supreme Court has held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables on to bring comparable awards together. Inflation should be taken into account while calculating damages. Similar proposition was retreated in Ritu Minor Thr. Her Father & Ors v. Regional Manager Uttranchal State Transport Corp.., MAC Appeal No 672/2012 dated 7 th December, 2012, New India Assurance Company Ltd. v. Vijay Babbar & Ors (2013) SCC Online Del 2595 and Kavita V. Deepak 2012 AIR SCW 4771. As such, injured is entitled for compensation under this head and her compensation is to be considered in view of above-said law.
16. Conveyance & Special diet: Petitioner has filed certain bills of Conveyance and Special diet to prove that she spent amount under these heads. However, injured sustained 100% permanent disability and remained hospitalized for such a long time and roamed around to MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 15/27 get treatment in a number of hospitals and spending of amount on conveyance was definite. Similarly, petitioner / Injured was under
treatment and also underwent multiple surgeries and was supposed to get special diet for expeditious recovery of such injuries, due to injured is entitled for compensation under these heads of Conveyance and Special diet.
17. Attendant charges: Injured has not proved any document to prove that she engaged any attendant to look her after during her hospitalization and thereafter. Though the testimony of PW1 is silent about the attendant services, yet she must have been assisted by some attendant or family members during hospitalization due to she is entitled for the attendant charges. Even such attendant charges are also to be considered qua family members if such services have been rendered by them and must be reasonable. However, the injured has suffered 100% permanent disability and needs the services of attendant not only for the treatment period but also for entire life, as she has suffered eye vision defect and also cognitive impairment to the extent of 75%. As such, she cannot do any work which require any type of skill and can do only day to day work of childish nature. The law laid down to this effect is relevant to be considered. It is held in IFFCO Tokio General Insurance Company Ltd. v. Raja & Ors, 2014 SCC Online Del 4375, National Insurance Co. Ltd. v. Gurmeet Singh & Ors 2012 SCC Online Del 1275, New India Assurance Co. Ltd. v. Poornanad & Ors v. 2015 SCC Online Del 9193 and Master Rishabh Aggarwal @ Sonu v. Raj Pal Singh & Ors 2012 SCC Online Del 5541 that injured is entitled for future attendant charges as MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 16/27 per multiplier applicable, if future attendant services are requires. On average basis, injured shall be entitled for attendant charges during the pendency of this case as well as for next 18 years as per multiplier of assessment of compensation for permanent disability @ Rs 7,000/- per month.
18. Lose of Income during treatment period: Petitioner has proved that she remained under treatment during the period from 25/3/2013 to November, 2014. Even she was bed ridden during this period including her hospitalization for more than 7 moths. In fact, she is entitled for loss of income for 2 years on average basis. As such, injured is entitled for loss of income for above said period as per the income to be determined by this court.
19. Earning of Injured- Before deciding the loss of earning of the petitioner / injured, it is necessary to determine her monthly / annual earnings. Injured has claimed that she was bright student and was doing her CA and documents to this effect have been proved on record. She was a bright student with excellent curricular activities, but admittedly, she was not earning. She was 12 th class passed and document to this effect are already on record. She was aged about 20 years at the time of accident as per her 10 th class certificate. She has not filed any ITR of income proof due to she is entitled for minimum wages of non graduate / matriculates prevalent in Delhi on the day of accident, which was Rs.8,814/- pm. As such, yearly income of the injured is taken as Rs.1,05,768/- per annum.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 17/27
20. Lose of income due to permanent disability: Petitioner / injured has suffered 100% permanent disability towards whole body as per disability certificate Ex.PW2/A. Though functional disability of an injured is not similar to actual disability, yet the purpose of disability certificate is to determine the actual as well as functional disability on account of accident. It is not disputed that the functional disability is to be determined by Schedule I of the Workmen's compensation Act, 1923 in terms of Section of Section 143 M.V. Act, if covered, and this fact has been discussed and considered by the various courts.
21. The observation of the Hon'ble Supreme Court of India made in case titled Oriental Insurance Co. Ltd. V. Mohd. Nasir (2009) 6 SCC 280 is relevant to be considered as under:
"...both the statutes provides for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. They provide the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-à-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount of compensation would be applicable. The 1923 Act would also be applicable to the claims applications arising out of the use of motor vehicles in terms of the provisions of the 1988 Act for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview of thereof. The note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that "injuries deemed to result in permanent total disablement/ permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's compensation Act,1923".
Permanent disability, therefore, for certain purposes have been co-related with functional disability. In fact, the disablement and loss of earning capacity are two different and not substitute to each other, however functional disability, thus, has a direct relationship with the loss of limb."
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 18/27
22. In view of the above said law, the functional disability has to be determined in comparison of the permanent disability. As per the disability certificate Ex.PW2/A, the permanent disability of injured is 100% and her functional disability is also similar. Injured is not in position to do anything on account of this disability as per the testimony of PW2. She has suffered 100% vision defect in one eye and 50% in other eye. She has suffered 75% cognitive impairment towards his mental functions and now will have to confine to room only. As such, the permanent disability of the injured Nupur Jain is taken as 100% and she is entitled for loss of income on account of permanent disability under this head at the same rate.
23. Now the multiplier is to be determined to calculate the loss of earning of injured Nupur Jain on account of this permanent disability. The multiplier of such damages has to be determined by Sarla Verma v. DTC, (2009) 6 SCC 121 after determination of the age of the petitioner / injured. As per petition, age of injured Nupur Jain is about 20 years but, as per 10th Class Certificate, her date of birth was 2/12/1993 which comes to 20 years on the day of accident took place on 25/3/2013. In fact, the age of injured is to be considered as 20 years to apply multiplier. The multiplier for age between the years 15 to 20 years is 18 and the loss of income of the petitioner has to be multiplied as per this multiplier. As such, the annual income of the injured was Rs.1,05,768/- per annum and loss of income @ 100% disability would be Rs.1,05,768 per annum. This loss of income has to be multiplied by 18 as per multiplier. Loss of income comes to Rs. 19,03,824/-. An additional 40% income has to be added towards future MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 19/27 earning in view of ORIENTAL INSURANCE CO. LTD v/s RAHUL GUPTA @ MANOJ KUMAR & ORS MAC.APP.542/2013 and the ruling of a Constitution Bench of the Hon'ble Supreme Court of India in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. In fact, the amount of future loss would be Rs. 7,61,530/-. As such, the total loss would be Rs. 19,03,824 + 7,61,530 = Rs.26,65,534/-.
24. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has proved that she has suffered disfigurement, loss of amenities and enjoyment in life on account of multiple fractures injuries to brain and also loss of vision of both eyes and inconvenience to her was / is bound to happen by such injuries. The disability certificate of the injured has proved the extent of discomfort and hardship suffered by her being 100% disable. The extent of mental stress may be presumed easily to a person who suffered such disability and family members also who have to manage her emotionally as well as medically. As such, injured is entitled for compensation for the mental shock and stress and also above said other heads.
25. Loss of Marriage prospects: Injured is an unmarried young lady aged about 20 years at the time of accident. Now she has lost her marriage prospects just because of this accident. She has to be reside with her family members throughout life and shall be dependent upon them being suffered 100% vision defect in one eye and 50% in other eye coupled with 75% cognitive impairment. As such, she is entitled for compensation under this head.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 20/27
26. Loss of Expectation of Life (Shortening of normal Longevity): Injured has suffered 100% permanent disability and her expectation of life has shortened by this accident. She has to remain in vegetative state during her life time. She is definitely entitled for compensation under this head as held in Neerupam Mohan Mathur v. New India Assurance Company Ltd., (2013) 14 SCC 15.
27. Compensation for future medical and other expenses:
Petitioner / injured has not proved any document that she is required further treatment, but she has suffered injuries to brain and it may not be ruled out that she may require some medical aid in future also. As such, she is entitled for some compensation under this head.
28. Loss of Study / Education : Injured was doing CA and was also pursuing her B.Com examination from Delhi University and she had studied from a reputed school. Her educational and extra curricular certificates are part of record to prove that she was bright student and would have achieved some good place in society. After this accident, she remained confined to bed for a long time and also went through multiple brain surgeries. As such, she has suffered loss in study and education and is entitled for some compensation under this head.
29. Keeping in view of the facts and circumstances, petitioner / injured is entitled for compensation as under:-
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 21/27
1. Reimbursement of medical expenses: Rs 16,26,839/-
2. Pain and Suffering: Rs. 3,00,000/-
3. Attendant charges for 65 months during Rs. 19,67,000/-
pendency of this case + 18 years for future
( Rs. 7,000/- pm) :
4. Lose of Income during treatment period: (2 Rs. 2,11,536/-
yrs as per income of Rs.1,05,768/-per
annum)
5. Loss of earning capacity including future Rs. 26,65,534/-
due to disability:
6. Conveyance & special diet present and Rs. 2,00,000/-
future :
7. Compensation for mental and physical Rs. 3,00,000/-
shock :
8. Loss of amenities in life: Rs. 3,00,000/-
9. Damages for inconvenience, hardship, Rs. 3,00,000/-
discomfort, frustration and disfigurement:
10. Loss of matrimonial prospects: Rs. 3,00,000/-
11. For future expenses : Rs. 1,00,000/-
12. Loss of Expectation of Life (Shortening of Rs. 1,00,000/-
normal Longevity):
13. Loss of Study / Education Rs. 2,00,000/-
Total = Rs.85,70,909/-(rounded
off Rs.85,71,000/-)
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 22/27
AWARD
This petition is allowed. Respondent No. 3 i.e. Insurance Company is directed to pay a compensation of Rs.85,71,000/- with interest @ 9% p.a. to injured from the date of filing of the petition till realization and to deposit the award amount within one month from the date of this award. Copy of Form V duly filled shall be treated as part of this award.
30. Liability: Petitioner has proved that the offending vehicle was owned by the respondent No. 2 and insured with Respondent No. 3. The Respondent No. 1 was the driver of the offending vehicle and it is not a case of breach of terms and conditions of insurance policy and there is no such defence also. injured is third party to the insurance company and is entitled for compensation. As such, Respondent No. 3 is liable to pay this compensation to the claimant. Petition is hereby allowed. Petitioner / injured is entitled for compensation of Rs.85,71,000/- from the Respondents No. 3 with interest @ 9% p.a. from the date of filing of the petitions till realization. Respondent No. 3 is liable to reimburse the owner to pay this compensation. Respondent No. 3 is directed to give notice regarding deposit of said amount to the petitioners as well as counsels. In fact, petitioner has successfully discharged the onus to prove this issue no. 2 also and is entitled for the claim amounts as above.
31. Disbursal of Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-29 of Modified Claims MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 23/27 Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in Rajesh Tyagi v. Jaibir Singh, I (2005) ACC 838 (Del.) and Tazuddin Ansari & Ors. v. Satish Kumar & Ors, 2016 SCC OnLine Del 5380 and the disbursement of the award amount in this case has to be considered.
31.1. The statement of father of claimant has been recorded separately. Petitioner has been contesting this case since the year 2013 and has spent huge amount on her treatment. As such, she is entitled for an amount of Rs. 20,71,000/- out of Rs.85,71,000/- with corresponding interest immediately and remaining amount of Rs. 65 Lacs shall be fixed by the way 20 FDRs of Rs.2,00,000/- (each) w.e.f. October, 2018. The last FDR shall be of Rs. 25 Lacs which shall be fixed for a period of 10 years. The FDR period prescribed by this court as under:
Sr. No. Duration of FDR Petitioner
1. 6 Months Rs. 2,00,000/-
2. 1 Year Rs. 2,00,000/-
3. 1 ½ Yrs. Rs. 2,00,000/-
4. 2 Yrs. Rs. 2,00,000/-
5. 2 ½ Yrs Rs. 2,00,000/-
6. 3 Yrs Rs. 2,00,000/-
7. 3 ½ Yrs Rs. 2,00,000/-
8. 4 Yrs Rs. 2,00,000/-
9. 4½ Yrs Rs. 2,00,000/-
10. 5 Yrs Rs. 2,00,000/-
11. 5½ Yrs Rs. 2,00,000/-
12. 6 Yrs Rs. 2,00,000/-
13. 6½ Yrs Rs. 2,00,000/-
14. 7 Yrs Rs. 2,00,000/-
15. 7 ½ Yrs Rs. 2,00,000/-
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 24/27
16. 8 Yrs Rs. 2,00,000/-
17. 8½ Yrs Rs. 2,00,000/-
18. 9Yrs Rs. 2,00,000/-
19. 9½ Yrs Rs. 2,00,000/-
20. 10 Yrs Rs. 2,00,000/-
20A. 10 Years Rs.25,00000/-
Total = Rs. 65,00,000/-
31.2. This FDR amount of Rs.25,00,000/- fixed under head 20A of the table shall remain fixed for a period of 10 years separately and shall not be en-cashed without the permission of the court. The amount on maturity shall be fixed for further period of 1 to 10 years by the way of FDR of Rs. 2.5 Lacs per annum.
31.3. The interest on the above said FDRs shall be calculated on monthly basis and to be credited automatically through ECS in the saving account of the petitioner nearby to her residence on monthly basis. FDR amount shall be paid on maturity basis in the same account of the petitioner against which interest amount is being credited through ECS.
31.4. The Manager, UCO Bank or of any other bank as desired by the claimant shall open the saving bank account of the claimant or transfer to his / her / their existing account, if any, nearby to his / her / their residence after taking relevant documents.
31.5. The withdrawal from the aforesaid bank account of the petitioner / claimant shall be after due verification by the bank and the bank shall issue photo identity card to the petitioner to facilitate the identity.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 25/27 31.6. The original FDRs shall be retained by the bank in the safe custody. However, statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to the claimant.
31.7. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioners.
31.8. No cheque book or debit card shall be issued to the claimants/ petitioners without the permission of this Tribunal. In case the debit card and / or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
31.9. That the bank shall make an endorsement on the passbook of the claimant to this effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
31.10. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent No. 3 i.e. Insurance Company till the date petitioner approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner per award of this Tribunal.
MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 26/27 31.11. On the request of the petitioners, the bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner. The claimant can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimant, the bank shall provide the said facility.
31.12. The petitioner(s) shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
31.13. Petitioner/ claimant (s) shall file a compliance report on next date of hearing about opening of saving bank account with the nationalized bank nearby to their/his/her residence and to get endorsed from the bank that no cheque-book, debit card or any other facility like ECS/ NFTT etc. has been provided against this bank account.
32. A copy of this judgment be given free of cost to the parties concerned and also be sent to the court of Ld. MM concerned as well as DLSA, Shahdara. File be consigned to RR and a separated file for compliance be maintained for 20.09.2018. Digitally signed by DEVENDER DEVENDER KUMAR KUMAR Date:
2018.08.18 16:57:46 +0530 Announced in open court (DEVENDER KUMAR) On 18.08.2018 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI MAC No. 770/16 Nupur Jain Vs. Rahul & Ors. 27/27