Delhi District Court
Baby Heena D/O Sh. Fazlu vs Sh. Akshay Kumar Sharma (Driver) on 31 January, 2011
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IN THE COURT OF SHRI GURDEEP SINGH : JUDGE
MOTOR ACCIDENTS CLAIMS TRIBUNAL : DELHI
Suit No. : 42/09
Unique Case ID : 02402C0 504842006
In re:
1. Baby Heena D/o Sh. Fazlu
R/o : D128, Gali No.1, Saheed Nagar
U. P. Border, Sahibabad
Dist. Ghaziabad (UP)
(Petitioner being a minor daughter under
N/G i.e. father Sh. Fazlu)
...PETITIONER
VERSUS
1. Sh. Akshay Kumar Sharma (DRIVER)
S/o Sh. Mam Chand Sharma
R/o : Ward No. 10, Purana Tehsil
Baghpat (UP)
2. Sh. Ram Siya @ Siya Ram (OWNER)
S/o Sh. Damru Lal
R/o : A68, Ashok Nagar
Delhi.
3. The National Insurance Co. Ltd. (INSURANCE CO.)
ROII, 2E/9, Jhandewalan Extn.
New Delhi.
Suit No. : 42/09 1 Page of 14
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... RESPONDENTS
Date of filing of the petition : 13.09.2006 Date of assignment to this court : 04.08.2009 Date of reserving judgment/order : 27.01.2011 Date of pronouncement : 31.01.2011 APPLICATION U/S. 166 & 140 OF MOTOR VEHICLES ACT 1988 FOR GRANT OF COMPENSATION JUDGMENT/AWARD 31.1.2011
1. This is a petition u/s 166 and 140 of Motor Vehicles Act 1988 (herein referred as Act of 1988) filed against R1 Akshay Kumar Driver, R2 Ram Siya @ Siya Ram Owner and R3 Insurance Company for grant of compensation of Rs.5,00,000/ on account of injury sustained by Baby Heena through her father Sh. Fazlu.
2. The brief facts as averred in the petition are that Baby Heena, aged about 10 years, student, on 2.7.2004 alongwith her mother and grand mother were going towards Sunder Nagar and at about 10:45 am when they reached opposite the Leprosy Mission Hospital near Water Tank Tahirpur, Tahirpur Road Suit No. : 42/09 2 Page of 14 -3- Nand Nagri while she was requesting her mother for crossing road for drinking water suddenly offending vehicle bearing registration no. DLILD6447 came driven in rash and negligent manner and hit the petitioner Baby Heena. She was removed to GTB Hospital by the PCR Staff.
3. The notice of the petition was given to the respondents. R3 Insurance Co. contested the petition inter alia on the ground that insurance company shall not be liable if the vehicle was being driven in violation of permit rule and terms and conditions of the and the driving was not holding valid driving license at the relevant time. However, it is admitted that the offending vehicle was insured in the name of R2.
4. R1 to R3 were not served and no steps were taken and vide order dated 4.9.2009 the petition was dismissed in default of appearance and thereafter vide order dated 15.07.2010 the petition was restored subject to the condition that the petitioner shall not be entitled to any interest during the period when the petition was dismissed in default ie 4.9.2009 till 15.07.2010. Thereafter R1 and R2 were served by way of publication and Suit No. : 42/09 3 Page of 14 -4- R1 and R2 were proceeded exparte vide order dated 23.09.2010 and 06.09.2010 respectively.
5. Following issues were framed vide order dated 23.09.2010 :
i. Whether the petitioner sustained injuries on account of negligent driving by R1 Sh. Akshay Kumar Sharma of vehicle No. DL1LD6447 (Tempo) on 2.7.2004 at about 10:45 am at opposite the Leprosy Mission Hospital Near Water Tank Tahirpur, Tahirpur Road, Nand Nagri within the jurisdiction of PS Nand Nagri ?
ii. Whether petitioner is entitled for any compensation, if so, from whom and to what amount ?
iii. Relief.
6. The petitioner in support of their case examined her father as PW1 Fazloo, PW2 Sh. Kapileshwar, Statistical Assistant GTB Hospital Delhi who proved the original treatment record containing 45 pages as Ex.PW2/A collectively and PW3 Ms. Fatima her grandmother who is eye witness. The Medical Superintendent, GTB Hospital was directed to examine the Suit No. : 42/09 4 Page of 14 -5- disability of Baby Heena and the disability certificate was directly received from the hospital by this tribunal.
7. R3 chose not to lead any evidence despite opportunity.
8. I have heard Sh. Pradeep Sharma, Ld. Counsel for the petitinoer and Sh. Vinod Kaul, Ld. Counsel for the respondent insurance company. I have also gone through the record.
9. My issue wise findings are as under : Issue No.1
10. PW1 Sh. Fazlu father of the Baby Heena submitted the discharged summary of petitioner Baby Heena wherein she has been shown to have been admitted on 7.7.2004 and discharged on 6.9.2004 with the alleged history of trauma on 2.7.2004 on road side accident. He submitted the treatment documents and stated that the remaining documents were given by him to his earlier counsel Sh. Sanjeev Bhardwaj but he did not return the same back despite requests and demand. In his cross examination he stated that he is not eye witness of the incident nor he accompanied the injured to the hospital. He further stated that no notice has been served upon the earlier counsel Suit No. : 42/09 5 Page of 14 -6- Sh. Sanjeev Bhardwaj for production of any bill.
11. PW3 Ms. Fatima who is grand mother of Baby Heena testified that on 2.7.2004 at about 10:45 am, she alongwith her grand daughter Heena was going on foot towards Sunder Nagri, Delhi and when they reached in front of gate of Kabristan, a tempo bearing registration no. 6447 came and hit her granddaughter Heena from the front, while driving at a fast speed in a negligent manner, which resulted in injuries on her various parts of body. With the result of the said accident, Heena sustained serious injury on her right leg. She was removed to the GTB Hospital by the PCR. She remained admitted in GTB Hospital for many days. In her crossexamination she stated that the driver of the offending vehicle was caught by the police at the spot itself and his vehicle number was disclosed. She alongwith her grand daughter were crossing the road at the time of the accident and they were in the middle of the road when the accident took place. She denied the suggestion that she was not holding the child properly which resulted in the child came in front of the vehicle. She further denied the suggestion that if she had taken due care while crossing the road with her grand Suit No. : 42/09 6 Page of 14 -7- daughter, the accident could have been avoided.
12. PW2 Sh. Kapileshwar, Statistical Assistant, GTB Hospital, Delhi proved the treatment record of Baby Heena who was admitted on 2.7.2004 and discharged from the hospital on 4.7.2004 vide MLC No. 2360/2004 and the patient case sheet Cr. No. 3561300 and Heena was again admitted in GTB Hospital on 7.7.2004 and discharged on 7.9.2004 vide case sheet Cr. No. 20040332956.
13. The other documents ie attested copy of FIR from SHO, mechanical inspection report, registration certificate of vehicle and its insurance, copy of the driving license and site plan and MLC are also filed on record. Which clearly proves that the injured Baby Heena had met with an accident involving the offending vehicle. Respondents had not led any evidence and there is no rebuttal of the same. Therefore it is proved on record that Baby Heena sustained injury on account of negligent driving of R1. Accordingly the issue no.1 is decided in favour of petitioner.
Issue No.2
Suit No. : 42/09 7 Page of 14
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14. Medical expenses : PW1 Sh. Fazlu testified that he has incurred Rs.30,000/ on medical treatment, Rs.10,000/ on conveyance and Rs.10,000/ on special diet and all the medical bills were given to his earlier counsel who did not return back the same despite requests. In his crossexamination he categorically stated that no notice was given to the counsel for production of bill which was handed over to him nor there is any complaint against the said counsel. However, one is well aware that even at the government hospital one is required to spend for its own pocket for medicines and keeping in view the length of the treatment, I find Rs.5000/ are reasonable and justify on account of medical expenses.
15. Attendant charge : The child was aged about 10 years and with this kind of injury one is unable to carry out his day to day chores and for attending the child one requires one attendant for her. Keeping in view the financial condition of the family of petitioner one person from their family must have attended to her during her treatment at the cost of loss of wages and therefore I take minimum wage applicable to unskilled person at the relevant time for about 6 months as attendant charge.
Suit No. : 42/09 8 Page of 14 -9- Accordingly I granted Rs.17180/ rounded off (2862.90 x 6) towards attended charges.
16. As per medical record discharge summery the child had deglowing injury on left leg and foot and on 8.7.2004 debrident done and on 27.8.2004 skin grafting done and she was finally discharged on 6.9.2004. As per the permanent disability certificate which was issued after about 6 years of the incident, having 62% locomotor impairment in relation with left lower limb. She remained hospitalised from 2.7.2004 to 4.7.2004 and again from 7.7.2004 to 7.9.2004.
17. Ld. Counsel on behalf of insurance company submitted that there is disability on one lower limb and therefore half of the same ie 50% should be taken for the whole body and cited Subhash Chand vs. Sh. Rulda Singh, 2007 II AD (DELHI) 636, FAO No. 377/1997, and also cited to take 1/3 towards the misc. expenses and cited in case of injury Sunil Kumar vs. Ram Singh Gaud & Ors. IX (2007) SLT 459 Supreme Court of India. On the other hand, Ld. Counsel for the petitioner cited Oriental Insurance Company vs. Vijay Kumar Mittal & Ors, Suit No. : 42/09 9 Page of 14 -10- 2007 (4) TAC 775 (DELHI HIGH COURT) wherein there was right leg amputated below knee and the disability of 60% was taken which was upheld by Hon'ble High Court of Delhi as the functional disability in relation with the work. He also cited National Insurance Co. Ltd. Vs. Pushpa Rana & Ors. (2009) ACJ 287, of Hon'ble Delhi Court wherein it is held that multiplier in accordance with 2nd scheduled is justified for impairment of earning capacity and should be ordinarily followed. He also cited National Ins. Co. Ltd. Vs. Shrikant & Ors IV (2010) ACC 18 of hon'ble Delhi High Court. In the cited case, the tribunal assess 72% permanent disability for right lower limb being a case of degloving injury right ankle and feet and 60% functional disability was taken by tribunal. It was held that the functional disability was correctly taken as 60%. In the latest decision, the hon'ble High Court of Delhi has upheld the permanent disability of right ankle and feet as 60% to be justified as functional disability.
18. In the present case the injury was similar as sustained in the case of National Ins. Co. Ltd. Vs. Shrikant & Ors. The disability on the lower limbs would seriously affect the earning Suit No. : 42/09 10 Page of 14 -11- capacity of an individual as the same restrict the free movement of an individual. Therefore, I take 62% disability as given by the medical board as the functional disability.
19. Future loss of Income : Admittedly the injured was a child having no income but her future earing capacity has been impaired on account of disability. The child was aged about 10 years at the time of incident ie 2.7.2004. The minimum age would be doubled after a period of 10 years. Therefore I take minimum wage as Rs.4294.35 = minimum wage as per index ie 2863 + (minimum wage x 2) divided by 2. Out of which 1/3 is to be deducted towards personal expenses and after deduction 1/3 it would come to Rs.2862.9 which is rounded off to Rs.2863/. As per the second scheduled appended with the Act the appropriate multiplier below the age of 15 years is 15 and thus I take multiplier of 15. Therefore Rs.319510 rounded off (Minimum wage after 1/3 deduction x 12 x 15 x 62%) towards the future loss of income granted.
20. Loss of marriage prospect : The petitioner being a girl child, the injury would also affect to her marriage prospect and Suit No. : 42/09 11 Page of 14 -12- therefore I grant Rs.50,000/ on account of loss of marriage prospect.
21. Accordingly, I am of the opinion that the injured is entitled to the compensation as follows :
Sl. On Account of Amt. (Rs.)
Estimated medical
1 expenses 5000
Future loss of income
(Minimum wage x 12 x 15
2 x 62%). 319510
3 Attendant charges 17180
4 Pain and Suffering 50000
Conveyance and Special
5 Diet 5000
6 Loss of marriage prospect 50000
7. Loss of future amenities of
life 100000
TOTAL 546690
22. Accordingly, I grant a compensation rounded off to Rs.546700/ (Rupees five lacs fourty six thousand and seven hundred only) to the petitioner with interest at the rate of 7.5 % from the date of filing of the petition till its Suit No. : 42/09 12 Page of 14 -13- realization. However petitioner is not entitled for interest from 4.9.2009 to 15.07.2010. Out of which Rs.5 lacs shall be kept in fixed deposit in any nationalised bank for a period of 20 years with no withdrawal, loan or advance facility. However the shall be entitled to get quarterly interest there on. Further, in necessity the petitioner can approach this tribunal for release of the amount before the completion of the period.
Issue No.3
23. In this case, the R1 is the driver and R2 is the owner. The injured has sustained injury on account of negligent of R1 therefore R1 & R2 are joint tortfeasor and severally liable to pay compensation. R3 is the insurer of R2 therefore R3 is liable and shall indemnify R2 regarding compensation to be payable to the third party ie the petitioner. RELIEF
24. Accordingly it is directed that R3 shall pay the amount of compensation awarded to the petitioners within 30 days Suit No. : 42/09 13 Page of 14 -14- from the date of order in the name of petitioner with the tribunal by way of cheque. No order as to cost. A copy of the award be supplied to the parties free of cost. File be consigned to record room.
Announced in the open court
the 31st of January, 2011
GURDEEP SINGH
JUDGE:MACT/DELHI
Suit No. : 42/09 14 Page of 14