Delhi District Court
Sh. Ankit Huda S/O Sh. Naresh Kumar Huda vs ) Sh. Kaushal Saini S/O Sh. Virender ... on 7 June, 2012
-1-
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No.946/10)
Sh. Ankit Huda S/o Sh. Naresh Kumar Huda,
R/o CN-7/129, Ibrahimpur,
Delhi-36. -----------Petitioner
Versus
1) Sh. Kaushal Saini S/o Sh. Virender Saini, (Owner-cum-Driver)
R/o Village Kushak Hiranki,
Delhi.
2) Future Generally India Insurance Company Ltd., (Insurance Company)
M-10, Deepsons Building, NDSE-Part-II,
New Delhi. -------Respondents
Date of institution---02.07.2010
Date of decision------07.06.2012
(APPLICATION U/S 140 AND 166 OF MOTOR VEHICLES ACT
FOR GRANT OF COMPENSATION)
********************************
JUDGMENT:-
Petitioner Ankit Huda aged about 18 years was a self employed boy. It is stated that on 09.05.20120 at about 8.15pm petitioner was driving his motorcycle bearing no.DL-8SAK-4680 and was proceeding towards Burari Village from Hiranki Village, Delhi, and when he reached at Burari Bakhtawarpur Road, near Kashmiri Colony, village Hiranki, Delhi, the a Tata Ace bearing no. DL-1L-M-4745, driven by its driver at a very high speed, in a rash, negligent and dangerous manner without paying any heed to traffic rules came from behind and hit the motorcycle of the petitioner. It is further stated that as a result of forceful impact petitioner fell down on the road and sustained grievous injuries all over his body. It is further stated that the accident was caused due to rash and negligent driving on the part of driver of the -2- offending vehicle. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No.140/10 in police station Alipur, Delhi.
Petitioner alleged that at the time of accident he was studying in 12 th standard and was also providing tuitions to the students and was earning Rs.5,000/- per month. He further averred that his entire life has ruined due to the injuries sustained by him in the accident and he will not be able to lead life of a normal person. He claimed a sum of Rs.30,00,000/- as compensation from the respondents being driver-cum-owner and insurance company of offending vehicle under various pecuniary and non pecuniary heads.
Respondent no.1 filed a written statement and totally denied of having any liability on their part towards compensation though admitted happening of an accident but totally blamed petitioner for it. He further averred that he has been falsely implicated in the alleged accident. Respondent no.2 insurance company in its written statement admitted existence of insurance policy qua the offending vehicle but tried to avoid its liability on some routine technical grounds.
On the basis of pleadings of the parties, following issues were framed on 12.11.2010 by my ld. predecessor:
1) Whether Sh. Ankit Huda suffered injuries due to the road accident on 09.05.2010 at about 8.15pm at Burari, Bakhtawarpur Road, near Kashmiri Colony, Village Hiranki, Delhi within the jurisdiction of PS Alipur due to rash and negligent driving of Tata Ace no. DL-1L-M4547 being driven by Respondent no.1? OPP
2) Whether the petitioner is entitled to compensation, if so, to what an extent and from which of the respondent? OPP
3) Relief.
In order to prove his case, petitioner examined three witnesses in all. Petitioner / injured himself as PW1, and tendered his affidavit Ex.PW1/A and relied -3- upon documents i. e. medical bills collectively as Ex.PW1/1 (76 sheets), photocopy of medical treatment record as Ex.PW1/2(30 sheets) & Ex.PW1/3 (2sheets) and photocopy of his disability certificate as Ex.PW1/4(OSR). During his cross- examination by counsel for insurance company petitioner stated that Doctor advised him to read less and not to carry weight of more than 5-6kg. He denied the suggestion that he was imparting any tuitions and that he was not earning any amount from tuitions.
PW2 Dr. Gaurav Kumar, Sr. Resident, Dr. R. P. Centre, AIIMS proved the photocopy of disability certificate of the injured / petitioner as Ex.PW2/A and deposed that there is a total loss of vision of right eye of the petitioner.
PW3 Dr. A. S. Bath, Sr. Consultant, Plastic Surgeon from B. L. Kapoor Memorial Hospital has brought the summoned record in respect of the treatment of petitioner Ankit Huda, who was admitted in his hospital on 09.05.2010 and discharged on 28.05.2010 and thereafter from 13.01.2011 to 14.01.2011. He proved entire medical treatment record of petitioner collectively as Ex.PW3/A and Ex.PW3/B (running into 2 folders). He further stated that due to the injuries sustained in the accident the right eye of the petitioner was completely ruptured and his entire eye had come out from its bony socket. He further stated that the petitioner was not able to open his eye lids because of the injury of eye muscles and nerves and the patient was having multiple fractures of the skull, multiple fractures of nasal bones, multiple fractures of bony sockets of the both orbits, multiple fractures of upper jaw and multiple lacerated wounds over the face. He further deposed that at the time of discharge, the right eye of the petitioner was missing and was having facial deformities and the vision of the right eye of the patient cannot be brought back, however, by way of cosmetic surgery, an artificial eye can be implanted for improving the facial appearance. PW3 further stated that generally for implanting artificial eye in such like cases as in hand, atleast two surgeries are required, first surgery is required for implanting the artificial eye and the second one is required to -4- open the eye lid, and cost of both the surgeries in his hospital will be approximately Rs.1 lakh as on today. PW3 further deposed that the estimate given is on the basis of cost of implants and medical facilities as on date and the same is bound to increase with the passage of time due to the inflation. He stated that the normal expected life of the artificial implant i.e. the artificial eye, is five years and the patient is required to replace the same after every five years and the operation for the replacement of implant requires Rs.20,000/- as on today and the patient will require minimum three weeks rest at the time of surgery for the affixation of implant. During cross-examination by counsel for insurance company PW3 stated that the surgery for affixation of artificial implant i. e. artificial eye can be performed in govt. hospital, but not in an ordinary govt. hospital and it can be performed only in the Centres wherein super specialty services are available such as AIIMS, PGI Chandigarh etc. and the same will be on a subsidized cost in such Centres and will not be free of cost. However, PW3 admitted that if the said surgery is not conducted then it may not amount to threat to the life of a person, but if the surgery is not performed in such situation, it leads to psychological trauma due to the deformity.
On the other hand respondent no.1 examined himself as R1W1, who tendered his affidavit Ex.R1W1/A and reiterated the defence taken in his written statement. He denied the suggestion that after causing the accident he tried to fled away from the spot with his vehicle and was apprehended by public person after chasing. He further stated that at the time of accident he was having a valid driving licence. He admitted that he had not lodged any complaint against the IO of the case before any higher authority against his alleged false implication in the present case and that he was not having any personal enmity with Joginder Singh and whose instance FIR in the present case was registered.
I have heard counsel for the parties and perused the material on record. Ld. counsel for insurance company has stated that he be allowed to file his written submissions on record. Oral clarifications and contentions of Ld. Counsel for -5- the Insurance Company have already been noted. Since counsel for the Insurance Company has concluded his arguments yesterday only, so now there is no need to file written arguments again at this stage. My decision on the above mentioned issues is as under:
ISSUE NO. 1:-
The principles to be followed in the case of motor accident claims has been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M.Karumai Ammal & Ors. (1980) 3 SCC 475 Hon'ble Supreme Court has observed as under:--6-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Petitioner/injured as PW-1 in his evidence disclosed how and in which manner the accident took place. Nothing adverse could come in the cross- examination of the witness to discard his version. It is not the case of the respondent no.1 that he knew either the petitioner or the IO before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 had not lodged any complaint against the IO of the case before any higher authority against his alleged false implication in the present case and that he was not having any personal enmity with Joginder Singh and whose instance FIR in the present case was registered. There is also no evidence on record to point out that respondent no.1 had any enmity with injured or his family members or investigation officer to create possibility of false implication of -7- respondent no.1 in criminal case. Version of the petitioner regarding accident has remained unrebutted and unchallenged and I find no ground to disbelieve him in this regard. There is nothing on record to point out that there was any negligence on the part of the petitioner. However, during cross-examination, counsel for respondents no.1 has put a suggestion that accident had not taken place due to negligence of the driver of the offending vehicle, which was specifically denied by the petitioner. Merely taking a defence or putting a question during cross-examination and not proving the same by any evidence, is not sufficient to hold that accident had not occurred due to rash and negligent driving of offending vehicle by respondent no.1. Copies of criminal case shows that police after investigation found that accident took place due to rash and negligent driving of the offending vehicle by respondent no.1. No effective cross examination of the petitioner was conducted by the respondents to this effect, so its adverse inference has to be taken against them. Police investigation also prima facie reveals the involvement of respondent no.1 in causing the accident due to driving of offending vehicle in rash and negligent manner. Hence it is held that the accident took place due to rash and negligent driving of TATA Ace bearing no.DL-1LM-4745 by respondent no. 1. Accordingly, this issue is decided in favour of petitioner and against the respondents.
ISSUE NO. 2:-
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses -8- incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"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 are capable of being calculated in terms of money; whereas non-pecuniary damages are those -9- 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 up to the date of trial, (iii) other material loss. So for non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and 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".
In the same case, the court further observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the -10- following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009: (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.-11-
In Arvind Kumar Mishra v. New India Assurance Co. Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988, ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as for as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be -12- compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
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 earnings on account of permanent disability.
c) Future medical expenses.
Non Pecuniary damages (General damages):
-13-
a) Damages for pain suffering and trauma as a consequence of the
injuries.
b) Loss of amenities (and/or loss of prospects of marriage).
c) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), iii) (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 earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the accident.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has further observed as under:
-14-"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg. The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal -15- human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life."
Pecuniary damages (Special damages):
To grant compensation in such like cases reliance can be placed upon the judgment titled as New India Insurance Company Ltd. vs. Ganga Devi and Another, reported in Manu D 3623 III ACC Cases 209 .
Injured / petitioner has been generally questioned under section 118 of MV Act regarding his ability to enable the court to come to just conclusion to award compensation to the injured. He stated that he is doing his professional courses and till completion of his studies he was scoring about 65% marks but after accident he could not pursue his studies for more than one year as Doctor advised him to take regular treatment of his eye and to read less. Presently, petitioner / injured is a student B. Tech of Vivekanand Institute of Technology and Science at Jindal Nagar, Ghaziabad, UP. Copy of his B. Tech Identity Card and copy of his school identity card being student of Joseph and Marry Public School at the time of accident has been filed on record and the same are exhibited as Ex.PX1 and Ex.PX2 respectively. Petitioner / injured belongs to a well to do family and his father is an ASI in Delhi Police. He is having a house of his own and also having an agricultural land in Haryana and belong to well do family.
In support of his contentions Ld. Counsel for petitioner stated that due to the accident he could not join his studies for one year on account of advice of doctor. He further stated that at the time of accident he was studying in 12th standard and was also imparting tuitions to the students and was earning a sum of Rs.5,000/- per month. Since the day of accident he was unable to do either his education or to carry out his work of tuitions till date and also will not be able to continue his education and to do any work throughout his life. Further, stated that petitioner -16- belongs to a well to do landlord family and has pursued his studies from a public school namely Joseph and Marry Public School and according to him secured 65% marks though no proof of same has been placed on record. Following the principle laid down by Supreme Court in the case of Haji Zainullah Khan v. Nagar Mahapalika and by Delhi High Court in the case of Union of India v. Dr. Rita Pant & in case of New India Assurance Company Limited v. Ganga Devi & Ors. pertaining to grant of compensation for future prospects of the student pursuing a professional course it is held that injured has reasonable future prospect as after completion of the professional course from Vivekanand Institute of Technology and Science at Jindal Nagar, Ghaziabad, UP, being a bright student, if not drawing a package of Rs.1,50,000/- per month atleast get a Govenment job of a Junior Engineer. Judicial notice can be taken to the effect that a Junior Engineer is drawing initially a income of Rs 30,000/- to Rs. 35,000/- per month so I grant one year loss of income in view of Motor Accident Cases which cannot be decided according to the strict Rules of Evidence since this is an enquiry proceeding and social legislature and strict Rules of Evidence are not applicable. Accordingly, monthly income of petitioner / injured is assessed to the tune of Rs.30,000/- per month. In view of the above the petitioner is granted a loss of income for a sum of Rs. 3,60,000/- (Rs. 30,000/- X 12) for one year.
The petitioner / injured has placed on record certain receipts and the medical bills regarding his treatment which shows that he had incurred expenses of Rs.9,00,000/- upon medicines, tests etc.. No dispute regarding the correctness and genuineness of these bills is raised. Hence, the petitioner / injured is entitled to Rs. 9,00,000/- towards the medical expenses.
Petitioner further averred that he spent a huge amount on his treatment and the same is still going on. The vision of right eye of petitioner has completely vanished and it is closed forever. PW3 in his statement has stated that the right eye of the patient was destroyed and patient was not able to open his right eye and was -17- having facial deformities and the vision of the right eye of the patient can be brought back by way of cosmetic surgery. PW3 further stated that generally for implanting artificial eye in such like cases as in hand, atleast two surgeries are required i.e. for implanting the artificial eye and to open the eye lid, and the cost of both the surgeries in his hospital will be approximately Rs.1 lakh as on today. PW3 further deposed that the estimate is given on the basis of cost of implants and medical facilities as on date and the same is bound to increase with the passage of time due to the inflation. He stated that the normal expected life of the artificial eye is five years and the patient is required to replace the same after every five years and the operation for the replacement of implant requires Rs.20,000/- as on today. The life of the petitioner has become hell due to the conduct of respondent No.1 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his family and other relations. There is no dispute with regard to the disability of the injured as well as the fact that his treatment will go on in future also. Hence, the petitioner / injured is entitled to Rs. 3,00,000/- towards future medical expenses.
As per disability certificate Ex.PW1/4 case of petitioner is a case of right orbit damage and eye ball destroyed. The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua whole body. Delhi High Court in New India Assurance Co. Ltd. vs. Raja Ram MAC.APP no. 175/2006 decided on 25-8-2009 ordered to consider the future increase on minimum wages also. Accordingly on the basis of formula given in this judgment, the monthly income of petitioner is taken into consideration at Rs. 45,000/- per month (Rs.30,000/- + 50%).
As per the case of injured, he is completely disabled in relation to right eye vision to the extent of 30%. He is not working because being not capable of working and in that very nature of the things the functional disability is 100% more than 70% physical disability. Hence disability on injured in relation to his right eye to -18- the extent of 30%, is assessed to 100% functional disability. Counsel for the petitioner has cited judgment passed by Hon'ble Supreme Court of India titled as Raviraj Udupa Vs United India Insurance Co. Ltd. & Others 2012 ACJ 286 decided on 16.08.2011.
It is the claim of the petitioner that at the time of accident he as about 18 years of age with good health and physique and was a bright student of 12th class and was imparting with tuitions and was earning Rs.5,000/- per month but due to said accident the injured lost his income and got 70% which amounts to complete functional disability of 100%, permanent disability as the petitioner would not be in a position to join any government service due to the permanent disablement and loss of vision his entire life has become standstill and is completely ruined. It is further stated that there is no future prospect for him with one eye after the accident.
Moreover, he spent on his treatment and the same is still going on. His entire career has also been hampered/affected badly due to this accident. The life of the petitioner has become hell due to the conduct of respondent No.1 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his family members and other relations. However, I take the disability to 50% functional disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC.
As per school Identity Card Ex.PX1 (OSR) of the petitioner his date of birth is 23.03.1992, according to which he was aged about 18 years on the date of accident. Hence in view of decision of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC 2009 ACJ 1298, multiplier of 18 has to be applied to count loss of earning capacity.
The petitioner was student of 12th class at the time of accident and presently pursing his B.Tech from Vivekanand Institute of Technology and Science -19- at Jindal Nagar, Ghaziabad, UP, as per document Ex.PX2 (OSR), but due to the alleged accidental injuries his career has totally finished. As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla Vs. Gopal MAC. APP No. 1028/2006 decided on 22.3.2010 so the total loss of future income or earning capacity comes to Rs. 32,40,000/- paise as per the formula (Rs. 30,000/- x 12 X 18 X 50%). Accordingly petitioner is granted loss of future income at Rs. 32,40,000/-.
Petitioner has stated that he spent a huge amount on conveyance and special diet. Further it is submitted that family of petitioner employed an attendant who attended the petitioner during the period of his treatment but no proof of spending upon conveyance, special diet and attendant is brought on record but it is a fact that normally in case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc is provided instead of or in addition to the normal food. Accordingly I am of the view that maximum petitioner can be paid lump sum Rs. 40,000/- towards special diet and Rs. 25,000/- conveyance charges and Rs. 50,000/- towards attendant charges.
Petitioner has submitted that he is still unmarried and no girl is willing to marry him due to disability suffered on account of alleged accident. He further stated that he was a young, smart and fair boy having good height but lost his marriage prospect because he completely lost his right eye at the time of accident. His marriage prospects have been vanished. Hence, I awarded a sum of Rs. 3,00,000/- towards loss of marriage prospects and shortening of life as per the judgment titled as Oriental Insurance Company vs. Vijay Kumar Mittal, (2008) ACJ 1300 and as per the judgment of Govind Yadav's case.
Non Pecuniary Damage:
As per the case of Govind Yadav it is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a -20- person suffered permanent disability as a result of accident. Even if the victim of accident gets out of grievous injuries, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young boy of 18 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, ends of justice will be met by awarding him a sum of Rs.
2,00,000/- in lieu of pain, suffering and frustration etc. caused due to injuries suffered in accident.
It can only be a matter of imagination as to how the injured will have to live for the rest of life with this functional disability of 50%. The injured can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. He is an unmarried man hence there is less prospects of his marriage. Hence I award him a sum of Rs. 2,00,000/- for the loss of amenities and enjoyment of life as per the judgment titled as Oriental Insurance Company vs. Vijay Kumar Mittal, (2008) ACJ 1300 and as per the judgment of Govind Yadav's case.
Counsel for insurance company has not raised any defence except the defence to the extent of damages. In support of his contentions he has relied upon the judgment titled as Ashok Narayan Khanna vs. Vishvanath reported as IV (2010) ACC 642. Facts of the above cited case are totally different from the case in hand since in that case injured was a married person, no loss of future prospect was asked for by petitioner and he was not performing any professional course. Beside this respondent no. 2 / Insurance Company has failed to bring on record any other evidence to show that the documents of the offending TATA Ace were not proper or genuine. Insurance company is not able to prove from any evidence that it is liable to be exonerated and is not liable to pay the compensation amount as ordered by the -21- court. Hence, the respondent no.2 shall be liable to pay the entire compensation amount.
In view of the above discussions this issue is decided in favour of petitioner and against the respondent by holding that he is entitled to get the following compensation from the respondent No. 2:-
Pecuniary damages (Special damages):
a) Medical expenses -------------------------------Rs. 9,00,000/-
b) Future Medical Expenses ---------------------Rs. 3,00,000/-
c) Loss of future income etc. --------------------Rs. 32,40,000/-
d) Special diet ---------------------------------------Rs. 40,000/-
e) conveyance ---- ----------------------------------Rs. 25,000/-
f) Loss of Income for twelve months-----------Rs. 3,60,000/-
g) Attendant Charges-------------------------------Rs. 50,000/-
Non-pecuniary damages (General damages):
h) Pain and sufferings & trauma-----------------Rs. 2,00,000/-
e) Loss of amenities & enjoyment of life------- Rs. 2,00,000/-
f) Loss of marriage prospect----------------------Rs. 3,00,000/-
______________ Total : Rs.56,15,000/-
ISSUE NO.3 : Relief Petitioner is entitled to a sum of Rs. 56,15,000/- alongwith interest @ 9% as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045, from 02.07.2010 till the payment is made by the insurance company within 30 days from the date of this award alongwith accrued interest. In case insurance company failed to make the entire payment of compensation amount alongwith accrued interest to the petitioner within 30 days, -22- then Insurance company shall be liable to pay the interest @ 12% p. a. on the entire compensation amount from 02.07.2012.
In addition to that the insurance company to pay a sum of Rs. 1,00,000/- towards lawyer charges by making a cheque in the name of lawyer's Sh. Sumit Gupta, Enrl. No. D-518/98/R as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 914 passed by justice J.R. Midha.
It is ordered that out of total compensation amount, Rs.15,00,000/- be released to the applicant for repayment of loan taken by him for the expenses incurred by him towards his earlier treatment.
It is further ordered that Rs. 3,00,000/- be kept in form of FDR in the name of petitioner to be released to the company or hospital from which the future treatment will be got done including installation of artificial eye or eye cap whichever is the technical name.
Further it is ordered that out of the remaining compensation amount, 30% be kept in form of FDR in the name of petitioner for a period of two years, 30% be kept in form of FDR in the name of petitioner for a period of three years and remaining 70% be kept in form of FDR in the name of petitioner for a period of 5 years inclusive of upto date interest.
FDRs be not broken without the permission of this Tribunal and be renewed from time to time. No loan or advance be given against the FDRs amount without the permission of this Tribunal. No ATM facility is being provided to the injured against the withdrawal of payment in cash. FDRs be kept in the State Bank of India, Rohini branch. Ordered accordingly.
-23-Respondent no.2/Insurance Company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioners and counsel for respondent no.2/Insurance Company for compliance. File be consigned to record room.
Announced in the open (D.K.MALHOTRA)
Court on 07.06.2012 JUDGE, MACT (OUTER-II)
DELHI