Delhi District Court
Also At vs Shri Kishan Chand on 9 October, 2014
IN THE COURT OF Ms. GEETANJLI GOEL
PO: MOTOR ACCIDENT CLAIMS TRIBUNAL 2
NEW DELHI
SUIT NO.453/14
DATE OF INSTITUTION: 05.05.2014
IN THE MATTER OF:
Krishna Devi
W/o Shri Ram Saran
R/o C24, Gali No. 18
Gali Mata Wali
Johripur, Delhi - 110094.
Also at:
WZ65B, Village Dasghara
New Delhi. ...... Petitioner.
SUIT No.454/14
DATE OF INSTITUTION: 05.05.2014
IN THE MATTER OF:
Chotu @ Dev Kumar
S/o Shri Ram Saran
R/o C24, Gali No. 18
Gali Mata Wali
Johripur, Delhi - 110094.
Also at:
WZ65B, Village Dasghara
New Delhi. ...... Petitioner.
Suit No. 453/14 & 454/14 Page No. 1 of 31
Versus
1. Shri Kishan Chand
S/o Shri Mahender Singh
R/o WZ35, Dasghara Village
New Delhi.
2. Mehar Chand
S/o Shri Khem Chand
R/o D74, Aaya Nagar
Gandi Mohalla
New Delhi 110047.
3. M/s ICICI Lombard General Ins. Co. Ltd.
Space No.315, 3rd Floor
Aggarwal City Mall
Plot No.04, Road No. 44
Pitampura
New Delhi 110034. .........Respondents
Final Arguments heard : 04.09.2014
Award reserved for : 09.10.2014
Date of Award : 09.10.2014
AWARD
1. Vide this judgment cum award I proceed to decide two petitions filed u/s 166
and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to
as the Act) for grant of compensation arising out of the same road accident.
2. It is the case of the petitioners that on 06.06.2013 at about 05.25 p.m. the
petitioner Krishna Devi along with her son Chotu @ Dev Kumar was traveling in
Suit No. 453/14 & 454/14 Page No. 2 of 31
TSR No.DL1RN9185. It is averred that when the TSR reached Dev Parkash
Shastri Marg, Opposite Dusghara Village, near Todapur Red Light, PS Inder Puri,
New Delhi, suddenly a Maruti Omni Car DL1RT2074 being driven rashly, recklessly
and negligently by the respondent No.1 in due course of his employment and with
permission of the respondent No.2 and insured with the respondent No.3 came
from Rajinder Nagar side at a very fast and shooting speed and hit the TSR from
the front bumper of his car. It is averred that as a result of the forceful impact the
petitioners sustained grievous injuries. It is averred that the respondent No.1 was
most rash, reckless and negligent in driving his car. No horn or signal was given by
the respondent No.1 before the accident. It is averred that the respondent No.1 had
driven his car at a fast and shooting speed at the relevant time and he failed to keep
proper look out and did not observe due care and caution as was expected of him
as a prudent driver. It is averred that the respondent No.1 could have easily avoided
and averted the accident had he kept proper lookout and observed due care and
caution and had he driven his car at a normal and controllable speed. It is averred
that the respondent No.1 is solely and entirely responsible for the accident and
injuries to the petitioners. It is averred that the respondent No.1 had hit the TSR in
the left corner of the road and at a place where the road is straight, wide and
properly lighted with clear visibility to a distance of more than 500 meters and as
such the respondent No.1 could have easily seen the petitioners from a long
distance had he kept proper look out. It is averred that all the facts of the case and
scene of the accident speak volumes of negligence on the part of the respondent
No.1 and invite application of the doctrine of resipsaloquitor. It is stated that FIR
No.97/2013 dated 06.06.2013 u/s 279/337 IPC, PS Inder Puri, South West Distt,
Suit No. 453/14 & 454/14 Page No. 3 of 31
Delhi was registered in respect of the accident.
FACTS OF SUIT No.453/14
3. It is averred that the petitioner Krishna Devi was traveling in the TSR bearing No.DL1RN9185 as a passenger at the time of her accident. It is averred that the petitioner sustained head injury, scratches, abrasions and cut injuries on all parts of the body and other injuries as described in the MLC and hospital discharge slips and xray on the petitioner. It is averred that the petitioner was given treatment at Sir Ganga Ram Hospital, New Delhi60 and domiciliary treatment at home. It is averred that the petitioner was removed to Sir Ganga Ram Hospital, New Delhi, where MLC was registered and the petitioner was subjected to various medical investigations/examinations, however she was discharged from the hospital with the advice to continue treatment in the OPD of the hospital and to take complete bed rest. It is averred that the treatment is continuing till date and the petitioner had already spent a sum of about Rs.1,50,000/ on her treatment, conveyance/ transportation and on taking extra nourishing vitamin enriched diet and her expenses were also still continuing. It is stated that the petitioner is aged 40 years and is a fruit and vegetable seller. She is selfemployed and earning Rs.400/ to 500/ per day. It is averred that the petitioner has gone down in health and is not able to move from one place to other independently. It is averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected. It is averred that the longevity of the petitioner had also been shortened and the stamina of the petitioner had also been reduced. It is averred that Suit No. 453/14 & 454/14 Page No. 4 of 31 the working capacity of the petitioner had also been reduced due to the accident and the memory of the petitioner had been adversely affected and she was not in a position to put even a little mental or physical strain on her and she had been disabled permanently. It is averred that the petitioner has developed a sense of insecurity, inferiority and the trauma of the accident had developed fear psychosis in her personality. It is averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. It is prayed that an amount of Rs.5,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
FACTS OF SUIT No.454/14
4. It is averred that the petitioner Chotu @ Dev Kumar was traveling in the TSR bearing No.DL1RN9185 as a passenger at the time of his accident. It is averred that the petitioner sustained head injury, scratches, abrasions and cut injuries on all parts of the body and other injuries as described in the MLC and hospital discharge slips and xray on the petitioner. It is averred that the petitioner was given treatment at Sir Ganga Ram Hospital, New Delhi60 and domiciliary treatment at home. It is averred that the petitioner was removed to Sir Ganga Ram Hospital, New Delhi, where MLC was registered and the petitioner was subjected to various medical investigations/examinations, however he was discharged from the hospital with the advice to continue treatment in the OPD of the hospital and to take complete bed rest. It is averred that the treatment is continuing till date and the petitioner had already spent a sum of about Rs.1,00,000/ on his treatment, Suit No. 453/14 & 454/14 Page No. 5 of 31 conveyance/transportation and on taking extra nourishing vitamin enriched diet and his expenses were also still continuing. It is stated that the petitioner is aged 19 years and is a student. It is averred that the petitioner has gone down in health and is not able to move from one place to other independently. It is averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected. It is averred that the longevity of the petitioner had also been shortened and the stamina of the petitioner had also been reduced. It is averred that the working capacity of the petitioner had also been reduced due to the accident and the memory of the petitioner had been adversely affected and he was not in a position to put even a little mental or physical strain on him and he had been disabled permanently. It is averred that the petitioner has developed a sense of insecurity, inferiority and the trauma of the accident had developed fear psychosis in his personality. It is averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. It is prayed that an amount of Rs.5,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
5. Written statement was filed on behalf of the respondent No.3 taking the preliminary objections that if it is found that the alleged offending vehicle was not involved in the alleged accident or the injuries allegedly sustained by the injured were due to the sole negligence of the injured, the respondent No.3 would not be liable to pay any compensation. It is averred that the compensation claimed by the petitioners is highly excessive, exorbitant, irrational, disproportionate and based on imaginary grounds, to which the petitioners are not entitled and the petitioners have Suit No. 453/14 & 454/14 Page No. 6 of 31 not given the basis on which the amount claimed has been arrived at. It is averred that the petition is bad for nonjoinder and misjoinder of the necessary parties as the owner and insurer of TSR No.DL1RN9185 had not been impleaded as one of the respondents. It is averred that in case it is found that the driving license of the driver, permit, fitness and RC of the offending vehicle were not valid, the respondent No.3 would have no legal liability to pay any sort of compensation, for the breach of conditions under Section 149(2) of the M. V. Act, 1988. It is averred that there is no cause of action against the respondent No.3. The averments made in the claim petition were denied. The factum of the alleged accident was denied. It is averred that the vehicle No.DL1RT2074 was insured with the respondent No.3 for the period between 08.12.2012 to 07.12.2013 vide policy No.3004/MI00955639/00/000.
6. Initially Detailed Accident Report was filed by the IO on 16.9.2013 and thereafter the claim petitions were filed on 11.3.2014. From the pleadings of the parties the following issues were framed vide order dated 05.05.2014:
1. Whether the petitioner sustained injuries in the accident which occurred on 06.06.2013 at about 5.25 p.m. at Dev Prakash Shastri Marg, Opposite Dusghara Village, near Todapur Red Light, caused by rash and negligent driving of vehicle no.DL1RT2074, driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom? OPP.
3. Relief.Suit No. 453/14 & 454/14 Page No. 7 of 31
An application under Section 170 of M. V. Act, 1988 was filed on behalf of the respondent No.3 which was allowed vide order dated 10.07.2014.
7. The petitioner Shri Chotu @ Dev Kumar appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A reiterating the averments made in the claim petition. He stated that he had already spent a sum of Rs.1,22,000/ on his treatment out of which a sum of Rs.75,000/ was spent on physiotherapy and for tests, investigation charges and buying the medicines prescribed by the doctors for his treatment, out of which he could obtain bills and cash memos to the tune of Rs.4,398/. He stated that he had spent a sum of Rs. 20,000/ on transportation and he also spent a sum of Rs.27,000/ @ Rs. 150/ per day upto 6 months, on taking extra nourishing, Vitaminenriched diet, juices, milk solids and good nonvegetarian diet with soups etc. for his speedy recovery for which he could obtain no receipts. He stated that he was a XII th pass out student at the time of the accident. He stated that he had sustained injuries in the road traffic accident which took place on 06.06.2013 and for which a criminal case vide FIR No.97/13 dated 06.06.2013 was also registered in PS Inder Puri, New Delhi, under Sections 279/337 of IPC, in which the respondent No.1 had been charge sheeted for the offence committed by him under Sections 279/337 IPC by the police. He stated that during the investigation of the criminal case the police had also prepared certain documents on the basis of which the challan u/s 173 of Cr.P.C was filed against the respondent No.1. He stated that he was entitled to compensation for pain and sufferings present and future, for expenses of the treatment done and to be done, for loss of study/earnings, present and future, for loss of enjoyment of life, for pain, agony and sufferings undergone by him and his Suit No. 453/14 & 454/14 Page No. 8 of 31 family, for reduced earning capacity, for increased expenses on conveyance, for the permanent disabilities, with all general and special damages under the law. Copy of college ID card, Pass book, Mark Sheets of Sr. School Examination Certificate and Graduation II Semester are Mark PW1/1 to Mark PW1/4, the bills are Ex.PW1/5 (colly) and the DAR is Ex.PW1/6 (colly). He was not crossexamined on behalf of the respondent No.1.
8. The petitioner Krishna Devi appeared as PW2 and led her evidence by way of affidavit which is Ex.PW2/A reiterating the averments made in the claim petition. She stated that she had already spent a sum of Rs.1,22,000/ on her treatment out of which a sum of Rs.75,000/ was spent on physiotherapy and for tests, investigation charges and buying the medicines prescribed by the doctors for her treatment, out of which she could obtain bills and cash memos to the tune of Rs.28,253.34/. She stated that she had spent a sum of Rs.20,000/ on transportation and she also spent a sum of Rs.27,000/ @ Rs.150/ per day upto 6 months, on taking extra nourishing, Vitaminenriched diet, juices, milk solids and good nonvegetarian diet with soups etc. for her speedy recovery for which she could obtain no receipts. She stated that she is a fruit and vegetable seller and used to earn Rs.400/ to Rs.500/ per day at the time of her accident. She stated that she could not work upto six months, out of which she remained under treatment so she suffered a loss of Rs.81,000/ (Rs. 13,500/ per month x 6 months). She stated that she was still suffering loss of income as her work efficiency had reduced due to the injuries suffered by her. She stated that she had sustained injuries in the road traffic accident which took place on 06.06.2013 and for which a criminal case vide FIR No.97/13 dated 06.06.2013 was Suit No. 453/14 & 454/14 Page No. 9 of 31 also registered in PS Inder Puri, New Delhi, under Sections 279/337 of IPC, in which the respondent No.1 had been charge sheeted for the offence committed by him under Sections 279/337 IPC by the police. She stated that during the investigation of the criminal case the police had also prepared certain documents on the basis of which the challan u/s 173 of Cr.P.C was filed against the respondent No.1. She stated that she was entitled to compensation for pain and sufferings present and future, for expenses of the treatment done and to be done, for loss of earnings, present and future, for loss of enjoyment of life, for pain, agony and sufferings undergone by her and her family, for reduced earning capacity, for increased expenses on conveyance, for the permanent disabilities, with all general and special damages under the law. Copy of Aadhar card is Ex.PW2/1, copy of cash memos/cash receipts are Ex.PW2/2 (colly) and the discharge slip is Ex.PW2/3. She was not crossexamined on behalf of the respondent No.1. PE was closed on 10.7.2014. It was stated by the learned counsel for the respondent No.3 that no RE was to be led and RE was closed on 12.8.2014.
9. I have heard the learned counsel for the petitioner and the respondent No.3 and perused the record. The petitioners were also examined on 10.7.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. My findings on the specific issues are as under:
Suit No. 453/14 & 454/14 Page No. 10 of 31
Issue No.1
11. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they sustained injuries in an accident caused due to rash and negligent driving by the respondent No.1, the driver of the offending vehicle No.DL1RT2074. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent.
Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is Suit No. 453/14 & 454/14 Page No. 11 of 31 not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
12. The case of the petitioners is that on 06.06.2013 at about 05.25 p.m. the petitioner Krishna Devi along with her son Chotu @ Dev Kumar was traveling in TSR No.DL1RN9185. When the TSR reached Dev Parkash Shastri Marg, Opposite Dusghara Village, near Todapur Red Light, PS Inder Puri, New Delhi, suddenly a Maruti Omni Car DL1RT2074 being driven rashly, recklessly and negligently by the respondent No.1 in due course of his employment and with permission of the respondent No.2 and insured with the respondent No.3 came from Rajinder Nagar side at a very fast and shooting speed and hit the TSR from the front bumper of his car. It was averred that as a result of the forceful impact the petitioners sustained grievous injuries. It was averred that the respondent No.1 was most rash, reckless and negligent in driving his car. No horn or signal was given by the respondent No.1 before the accident. It was averred that the respondent No.1 had driven his car at a fast and shooting speed at the relevant time and he failed to keep proper look out and did not observe due care and caution as was expected of him as a prudent driver. It was averred that the respondent No.1 could have easily Suit No. 453/14 & 454/14 Page No. 12 of 31 avoided and averted the accident had he kept proper lookout and observed due care and caution and had he driven his car at a normal and controllable speed. It was averred that the respondent No.1 was solely and entirely responsible for the accident and injuries to the petitioners. It was averred that the respondent No.1 had hit the TSR in the left corner of the road and at a place where the road is straight, wide and properly lighted with clear visibility to a distance of more than 500 meters and as such the respondent No.1 could have easily seen the petitioners from a long distance had he kept proper look out. It was averred that all the facts of the case and scene of the accident speak volumes of negligence on the part of the respondent No.1 and invite application of the doctrine of resipsaloquitor. It was stated that FIR No.97/2013 dated 06.06.2013 u/s 279/337 IPC, PS Inder Puri, South West Distt, Delhi was registered in respect of the accident. PW1 in para 3 of his affidavit Ex.PW1/A had reiterated the mode and manner of the accident as stated in the claim petition.
13. The IO had filed the DAR comprising of the criminal record consisting of copy of charge sheet, copy of tehrir, copy of FIR No.97/2013 under sections 279/337 IPC, PS Inder Puri, copies of photographs, copy of site plan, copies of MLCs, copy of seizure memos, copy of mechanical inspection report of the TSR bearing No.DL1RN9185 and of the Maruti Omni Van No.DL1RT2074, copy of notice under Section 133 MV Act, copy of arrest memo, copy of the DL of the driver of the offending vehicle and its verification report, copy of RC of the offending vehicle along with its verification report as also of the permit and fitness certificate, copy of the insurance policy of the offending vehicle with its verification, copy of certificate of fitness of the offending vehicle with its verification report, copy of Suit No. 453/14 & 454/14 Page No. 13 of 31 challan, copy of superdarinama in respect of the offending vehicle along with the order on the application for release of the vehicle on superdari and copy of application for the release of the TSR on superdari along with copy of the superdarinama. As per the FIR No.97/2013 under sections 279/337 IPC, PS Inder Puri the case was registered on the basis of complaint of ASI Uttam Chand (on DD). As per the charge sheet the driver of the offending vehicle Kishan Chand respondent No.1 has already been charge sheeted for the offence under sections 279/337 IPC.
14. The respondents No.1 and 2 had neither filed the written statement nor cross examined PW1 and PW2. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 denied the suggestion that the accident did not take place due to the rash and negligent driving of the car bearing No.DL1RT2074. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 denied the suggestion that the accident took place due to the sole negligence of the driver of TSR bearing No.DL1RN9185 as he applied the brake suddenly and thereby caused the alleged accident. She denied the suggestion that the accident did not take place due to the rash and negligent driving of the car bearing No.DL1RT2074. She could not tell the registration No. of the car. Thus PW2 could not tell the registration number of the car but nothing much turns on the same. Only suggestions were put to PW1 and PW2 which they denied. The respondents No.1 and 2 who are driver and the owner of the offending vehicle have not produced any evidence to dispute the version put forth by the petitioners. Further the criminal record has been placed on record which shows that the respondent No.1 has already been charged sheeted for the offence under Sections Suit No. 453/14 & 454/14 Page No. 14 of 31 279/337 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not adduced any evidence to prove any other version of the accident. There is absolutely no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL1RT2074. The fact that the charge sheet is filed against the respondent No.1 and the respondent No.1 is facing criminal trial is also not disputed. In view of the testimony of the PWs and the documents on record which have remained unrebutted, the negligence of respondent No.1 has been prima facie proved.
15. It was stated that as a result of the forceful impact the petitioners sustained grievous injuries. It was averred that the petitioners sustained head injury, scratches, abrasions and cut injuries on all parts of the body and other injuries as described in the MLC and hospital discharge slips and xray on the petitioners. It was averred that the petitioners were removed to Sir Ganga Ram Hospital, New Delhi, where MLC was registered. The MLCs of the petitioners are on record which show the injuries sustained by the petitioners. Accordingly issue No.1 is decided in favour of the petitioners and against the respondents.
Suit No. 453/14 & 454/14 Page No. 15 of 31 Issue No.2
16. Since issue No.1 has been decided in favour of the petitioners they would be entitled to compensation. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered on treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, the injured is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life. COMPENSATION IN SUIT No.453/14 MEDICINES AND MEDICAL TREATMENT
17. The case of the petitioner Krishna Devi is that as a result of the forceful impact of the accident on 6.6.2013 she sustained grievous injuries. It was averred that the petitioner sustained head injury, scratches, abrasions and cut injuries on all parts of the body and other injuries as described in the MLC and hospital discharge slips and xray on the petitioner. It was averred that the petitioner was given treatment at Sir Ganga Ram Hospital, New Delhi60 and domiciliary treatment at home. It was averred that the petitioner was removed to Sir Ganga Ram Hospital, New Delhi, where MLC was registered and the petitioner was subjected to various medical investigations/examinations, however she was discharged from the hospital Suit No. 453/14 & 454/14 Page No. 16 of 31 with the advice to continue treatment in the OPD of the hospital and to take complete bed rest. It was averred that the treatment was continuing till date and the petitioner had already spent a sum of about Rs.1,50,000/ on her treatment, conveyance/transportation and on taking extra nourishing vitamin enriched diet and her expenses were also still continuing. It was averred that the petitioner had gone down in health and was not able to move from one place to other independently. It was averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected. It was averred that the longevity of the petitioner had also been shortened and the stamina of the petitioner had also been reduced. It was averred that the working capacity of the petitioner had also been reduced due to the accident and the memory of the petitioner had been adversely affected and she was not in a position to put even a little mental or physical strain on her and she had been disabled permanently. It was averred that the petitioner had developed a sense of insecurity, inferiority and the trauma of the accident had developed fear psychosis in her personality. It was averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. The petitioner in paras 3, 4, 5 and 8 of her affidavit Ex.PW2/A had deposed to that effect. PW2 deposed that she had already spent a sum of Rs.1,22,000/ on her treatment out of which a sum of Rs.75,000/ was spent on physiotherapy and for tests, investigation charges and buying the medicines prescribed by the doctors for her treatment, out of which she could obtain bills and cash memos to the tune of Rs.28,253.34/. Copy of cash memos/cash receipts are Ex.PW2/2 (colly) and the discharge slip is Ex.PW2/3. She was not crossexamined on behalf of the respondent No.1.
Suit No. 453/14 & 454/14 Page No. 17 of 31
18. The MLC is on record which shows the injuries sustained by the petitioner and the injuries were opined to be simple in nature. The discharge slip Ex.PW2/3 shows closed wound in Lt. occipital region. They also show that the petitioner remained admitted in hospital from 6.6.2013 to 9.6.2013 and there is one document of JD Medical Centre which shows from 10th June to 15th June but it was not a discharge slip and it is not clear what it implies. There is however nothing to show that the petitioner had suffered any disability in the accident. During cross examination by the learned counsel for the insurance company - respondent No.3 PW2 stated that she had not placed on record any advice of the doctor that she should remain on bed rest for 6 months. She denied the suggestion that she had deposed falsely that she could not work for 6 months. She could not tell the expenses incurred on her treatment. She denied the suggestion that she did not spend a sum of Rs.1,22,000/ on her treatment out of which a sum of Rs.75,000/ was spent on physiotherapy. She admitted that she did not place on record any advice of doctor that she had a requirement of physiotherapy. She denied the suggestion that she had filed false and fabricated documents. Thus PW2 stated that she had not placed on record any advice of the doctor that she should remain on bed rest for 6 months and there is nothing to show that she had to remain on bed rest for 6 months. In fact there is nothing to show that she underwent treatment after June, 2013. PW2 could not tell the expenses incurred on her treatment though she denied the suggestion that she did not spend a sum of Rs.1,22,000/ on her treatment out of which a sum of Rs.75,000/ was spent on physiotherapy. She admitted that she did not place on record any advice of doctor that she had a requirement of physiotherapy. It was stated in the claim petition that the petitioner Suit No. 453/14 & 454/14 Page No. 18 of 31 had incurred an expenditure of Rs.1,50,000/ on treatment till date and the treatment was still continuing and in the affidavit Ex.PW2/A it was stated that she had spent Rs.1,22,000/ on her treatment. The petitioner has placed on record bills for an amount of Rs.23,254/. It cannot be disputed that the petitioner sustained injuries in the accident and underwent treatment for the same. There is however nothing to show any expenditure on physiotherapy. Accordingly the petitioner would be entitled to the amount of the bills. Further the petitioner would have incurred some expenditure towards medicines and medical treatment even subsequently. As such an amount of Rs.25,000/ (Rs.Twenty Five Thousand only) is awarded towards medicines and medical treatment including the amount of the bills.
19. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform her day to day duties towards her family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. During cross examination by the learned counsel for the insurance company - respondent No.3 PW2 denied the suggestion that she did not spend a sum of Rs.20,000/ on transportation or a sum of Rs.27,000/ on special diet. However there is nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that she might have to incur extra expenditure on attendant charges. However it can be taken note of that she might have had to take special diet for a few days and she would have incurred some expenses on conveyance.
Suit No. 453/14 & 454/14 Page No. 19 of 31 LOSS OF INCOME
20. It is the case of the petitioner that the petitioner is aged 40 years and is a fruit and vegetable seller. She is selfemployed and earning Rs.400/ to 500/ per day. It was averred that the petitioner had gone down in health and was not able to move from one place to other independently. It was averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected and the stamina of the petitioner had also been reduced. It was averred that the working capacity of the petitioner had also been reduced due to the accident and the memory of the petitioner had been adversely affected and she was not in a position to put even a little mental or physical strain on her and she had been disabled permanently. It was averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. PW2 stated that she is a fruit and vegetable seller and used to earn Rs. 400/ to Rs.500/ per day at the time of her accident. She stated that she could not work upto six months, out of which she remained under treatment so she suffered a loss of Rs.81,000/ (Rs.13,500/ per month x 6 months). She stated that she was still suffering loss of income as her work efficiency had reduced due to the injuries suffered by her. She stated that she was entitled to compensation for loss of earnings, present and future, for reduced earning capacity and for the permanent disabilities, with all general and special damages under the law. However, the petitioner has not placed on record any document to show what she was doing or how much amount she was earning.
Suit No. 453/14 & 454/14 Page No. 20 of 31
21. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW2 stated that her husband is working as Beldar. She admitted that she had not filed any document to show her income and employment. She denied the suggestion that she is not a fruit and vegetable seller or that she did not earn Rs.400500/ per day at the time of the accident. She had not placed on record any advice of the doctor that she should remain on bed rest for 6 months. She denied the suggestion that she had deposed falsely that she could not work for 6 months. She denied the suggestion that she did not suffer any financial loss due to the accident. Thus PW2 stated that her husband is working as Beldar. She admitted that she had not filed any document to show her income and employment though she denied the suggestion that she is not a fruit and vegetable seller or that she did not earn Rs.400500/ per day at the time of the accident. She had not placed on record any advice of the doctor that she should remain on bed rest for 6 months. As such the petitioner herself stated that she had not filed any document to show her income and employment and there is nothing on record to show that she was earning Rs.13,500/ per month or Rs.400 to Rs.500/ per day. During examination by the Tribunal the petitioner stated that she is 40 years old. She stated that she was a vegetable vendor and earning Rs.500600/ per day.
22. The petitioner had contended that she was completely on bed rest and could not work for six months. However during crossexamination PW2 stated that she had not placed on record any advice of the doctor that she should remain on bed rest for 6 months. Even there is nothing to show that her treatment continued after June, 2013. Thus there is nothing on record to show that she was advised bed rest Suit No. 453/14 & 454/14 Page No. 21 of 31 for any particular period except for the period when she remained admitted in hospital. Again no document has been produced to show for how much period the petitioner had to remain on bed rest on account of the injuries sustained in the accident or what was the loss suffered by her. Notice can however be taken of the fact that the petitioner may not have been able to perform her avocation for some period. Hence, the petitioner is held entitled to an amount of Rs.10,000/ on account of loss of income.
23. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that she acquired any disability on account of the accident or that she is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce her efficiency to work and thereby she would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future income.
24. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.45,000/ would be just and reasonable. Accordingly an amount of Rs.45,000/ is awarded as compensation in favour of the petitioner. Suit No. 453/14 & 454/14 Page No. 22 of 31 COMPENSATION IN SUIT No.454/14 MEDICINES AND MEDICAL TREATMENT
25. The case of the petitioner Chotu @ Dev Kumar is that as a result of the forceful impact of the accident on 6.6.2013 he sustained grievous injuries. It was averred that the petitioner sustained head injury, scratches, abrasions and cut injuries on all parts of the body and other injuries as described in the MLC and hospital discharge slips and xray on the petitioner. It was averred that the petitioner was given treatment at Sir Ganga Ram Hospital, New Delhi60 and domiciliary treatment at home. It was averred that the petitioner was removed to Sir Ganga Ram Hospital, New Delhi, where MLC was registered and the petitioner was subjected to various medical investigations/examinations, however he was discharged from the hospital with the advice to continue treatment in the OPD of the hospital and to take complete bed rest. It was averred that the treatment was continuing till date and the petitioner had already spent a sum of about Rs. 1,00,000/ on his treatment, conveyance/transportation and on taking extra nourishing vitamin enriched diet and his expenses were also still continuing. It was averred that the petitioner had gone down in health and was not able to move from one place to other independently. It was averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected. It was averred that the longevity of the petitioner had also been shortened and the stamina of the petitioner had also been reduced. It was averred that the working capacity of the petitioner had also been reduced due to the accident and the Suit No. 453/14 & 454/14 Page No. 23 of 31 memory of the petitioner had been adversely affected and he was not in a position to put even a little mental or physical strain on him and he had been disabled permanently. It was averred that the petitioner had developed a sense of insecurity, inferiority and the trauma of the accident had developed fear psychosis in his personality. It was averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. The petitioner in paras 4, 5, 6 and 9 of his affidavit Ex.PW1/A had deposed to that effect. PW1 deposed that he had spent a sum of Rs.1,22,000/ on his treatment out of which a sum of Rs.75,000/ was spent on physiotherapy and for tests, investigation charges and buying the medicines prescribed by the doctors for his treatment, out of which he could obtain bills and cash memos to the tune of Rs.4,398/. The bills are Ex.PW1/5 (colly). He was not crossexamined on behalf of the respondent No.1.
26. The MLC is on record which shows the injuries sustained by the petitioner being CLW over the occipital region and the injuries were opined to be simple in nature. There is however nothing to show that the petitioner had suffered any disability in the accident. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated he was hospitalized for 1012 hours volunteered he was again admitted in Kapoor Nursing Home for 56 days. He admitted that he had not placed on record medical treatment of Kapoor Nursing Home. He stated that he had not placed on record any advice of the doctor that he should remain on bed rest for 6 months. He denied the suggestion that he had deposed falsely that he could not work for 6 months. He could not tell the expenses incurred on his treatment. He denied the suggestion that he did not spend a sum of Suit No. 453/14 & 454/14 Page No. 24 of 31 Rs.1,22,000/ on his treatment out of which a sum of Rs.75,000/ was spent on physiotherapy. He admitted that he had not placed on record any advice of doctor that he had a requirement of physiotherapy. He denied the suggestion that he had filed false and fabricated documents.
27. PW1 thus stated that he was hospitalized for 1012 hours volunteered he was again admitted in Kapoor Nursing Home for 56 days. However he admitted that he had not placed on record medical treatment of Kapoor Nursing Home and there is no document on record to show the same. He stated that he had not placed on record any advice of the doctor that he should remain on bed rest for 6 months and there is nothing to show that he had to remain on bed rest for 6 months. In fact there is nothing to show that he underwent treatment after June, 2013. PW1 could not tell the expenses incurred on his treatment though he denied the suggestion that he did not spend a sum of Rs.1,22,000/ on his treatment out of which a sum of Rs. 75,000/ was spent on physiotherapy. He admitted that he had not placed on record any advice of doctor that he had a requirement of physiotherapy. It was stated in the claim petition that the petitioner had incurred an expenditure of Rs.1,00,000/ on treatment till date and the treatment was still continuing and in the affidavit Ex.PW1/A it was stated that he had spent Rs.1,22,000/ on his treatment. The petitioner has placed on record bills for an amount of Rs.4,398/. It cannot be disputed that the petitioner sustained injuries in the accident and underwent treatment for the same. There is however nothing to show any expenditure on physiotherapy. Accordingly the petitioner would be entitled to the amount of the bills. Further the petitioner would have incurred some expenditure towards medicines and Suit No. 453/14 & 454/14 Page No. 25 of 31 medical treatment even subsequently. As such an amount of Rs.5,000/ (Rs.Five Thousand only) is awarded towards medicines and medical treatment including the amount of the bills.
28. Note can also be taken of the fact that on account of the accident the petitioner may not have been able to perform his day to day duties towards his family and may not have been able to enjoy the amenities of life and would have undergone pain and suffering. No document has been placed on record regarding expenditure on conveyance, special diet or attendant charges. During cross examination by the learned counsel for the insurance company - respondent No.3 PW1 denied the suggestion that he did not spend a sum of Rs.20,000/ on transportation or a sum of Rs.27,000/ on special diet. However there is nothing to show any expenditure on these counts. There is also nothing to show that the injuries of the petitioner were such that he might have to incur extra expenditure on conveyance or attendant charges. However it can be taken note of that he might have had to take special diet for a few days.
LOSS OF INCOME
29. It is the case of the petitioner that he was aged 19 years and a student. It was averred that the petitioner has gone down in health and was not able to move from one place to other independently. It was averred that the petitioner was very active before the accident and had a robust health, which had been adversely affected and the stamina of the petitioner had also been reduced. It was averred that the working capacity of the petitioner had also been reduced due to the accident and Suit No. 453/14 & 454/14 Page No. 26 of 31 the memory of the petitioner had been adversely affected and he was not in a position to put even a little mental or physical strain on him and he had been disabled permanently. It was averred that the petitioner had sustained personal injuries in the road accident which was likely to result into permanent physical disability. PW1 stated that he was a XII th pass out student at the time of the accident. He stated that he was entitled to compensation for loss of study/earnings, present and future, for reduced earning capacity and for the permanent disabilities, with all general and special damages under the law. Copy of college ID card, Pass book, Mark Sheets of Sr. School Examination Certificate and Graduation II Semester are Mark PW1/1 to Mark PW1/4 which show that he was doing graduation at the time of the accident.
30. During crossexamination by the learned counsel for the insurance company - respondent No.3 PW1 stated that he was a student at the time of the accident and he was still studying. He admitted that he had not suffered any study loss due to the accident. He stated that he had not placed on record any advice of the doctor that he should remain on bed rest for 6 months. He denied the suggestion that he had deposed falsely that he could not work for 6 months. Thus PW1 stated that he was a student at the time of the accident and he was still studying and the documents also show that. During examination by the Tribunal the petitioner stated that he is 20 years old at present. He stated that he is in first year BA. It is pertinent that PW1 admitted that he had not suffered any study loss due to the accident. Suit No. 453/14 & 454/14 Page No. 27 of 31
31. The petitioner had contended that he was completely on bed rest and could not work for six months. However during crossexamination PW1 stated that he had not placed on record any advice of the doctor that he should remain on bed rest for 6 months. Even there is nothing to show that his treatment continued after June, 2013. Thus there is nothing on record to show that he was advised bed rest for any particular period. Again no document has been produced to show for how much period the petitioner had to remain on bed rest on account of the injuries sustained in the accident or what was the loss suffered by him and in fact he had admitted that he had not suffered any study loss due to the accident. Notice can however be taken of the fact that the petitioner may not have been able to perform his avocation for some period. Even if the petitioner was not working his income would be computed notionally for computing the loss of income. Hence, the petitioner is held entitled to an amount of Rs.10,000/ on account of loss of income.
32. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future income.
33. In the facts and circumstances of the case and in view of the above discussion a lump sum amount of Rs.23,000/ would be just and reasonable. Accordingly an Suit No. 453/14 & 454/14 Page No. 28 of 31 amount of Rs.23,000/ is awarded as compensation in favour of the petitioner. RELIEF
34. The petitioner Krishna Devi in suit No.453/14 is awarded a sum of Rs. 45,000/ (Rs.Forty Five Thousand only) and the petitioner Chotu @ Dev Kumar in suit No.454/14 is awarded a sum of Rs.23,000/ (Rs.Twenty Three Thousand only) alongwith interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioners. The entire amount be released to the petitioners. The respondent No.3 is directed to deposit the said amount by way of crossed cheques/ demand drafts in court within 30 days of the award failing which it would be liable to pay interest at the rate of 12% p.a. for the period of delay. The petitioners shall file their complete address as well as address of their counsel for sending the notice of deposit of the award amount.
APPORTIONMENT OF LIABILITY:
35. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. M/s ICICI Lombard General Insurance Company Limited being the insurance company in its reply had admitted that the vehicle No.DL1RT2074 was insured with the respondent No.3 for the period Suit No. 453/14 & 454/14 Page No. 29 of 31 between 08.12.2012 to 07.12.2013 vide policy No.3004/MI00955639/00/000. There is no evidence on behalf of respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondents No.1 and 2. The respondent No.3 being the insurer is directed to deposit the award amount in the court by way of crossed cheques/ demand drafts within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
36. Nazir to report in case the cheques are not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The respondent No.3 shall deposit the award amount along with interest upto the date of notice of deposit to the claimants with a copy to their counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 22.12.2014.
Attested copy of the award be given to the parties free of cost. Suit No. 453/14 & 454/14 Page No. 30 of 31 File be consigned to record room.
Announced in open court
on this 9th day of October, 2014 (GEETANJLI GOEL)
PO: MACT2
New Delhi.
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