Delhi District Court
Also At vs Sh. Dharambir S/O Sh. Manohar Lal on 10 August, 2015
IN THE COURT OF SHRI RAJ PAUL SINGH TEJI
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
(WEST -01) DELHI
Case NO.: 129/13
Smt. Vimla Devi
w/o Sh. Lakhmi Chand
R/o D-98/12, Shiv Ram Park,
Nangloi, Delhi
Also at:
H. No. 2/221, Begam Baghtin Neem Wali Gali,
Aligarh (U.P.)
.......Petitioner
VERSUS
1. Sh. Dharambir s/o Sh. Manohar Lal
R/o Village Bhandsi, Distt. Gurgaon,
Haryana( Driver)
2. Sh. Jai Bhagwan s/o Sh. Tej Ram
328, Mandir Wali Gali, Baba Hari Dass Colony,
Tikri Kalan, Delhi (owner)
3. ICICI Lombard General Insurance Company
Head Office: Zenith Hgouse, Keshavarao,
Khade Marg, Mahalaxmi, Mumbai-400034 (insurer)
......... Respondents
Suit No. 129/13 Page No. 1/12
Date of Institution: 22/02/2013 (DAR) Date of reserving order/judgment: 06/08/2015 Date of pronouncement : 10/08/2015 AWARD
1. This Judgment-cum-Award shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as 'Act') filed petitioner for grant of compensation for the injuries suffered by her in the road vehicular accident.
2. Brief facts of the case of the petitioner is that on 18/08/2012 at about 5.15 p.m when the petitioner as pillion rider was coming from RML Hospital on a motorcycle bearing No. DL 8SAW-5335 and when she reached at Red Light Madipur Chowk, Peeragarhi Carriage Way, Punjabi Bagh, Delhi and waiting for green signal light, then the offending vehicle bearing No. DL -1LP-1594 (TATA ACE Tempo) which was being driven by its driver/ respondent No. 1 in rash and negligent manner and hit the petitioner with mirror of the offending vehicle. Resultantly, the petitioner as pillion rider fell down and got injuries. In total, the petitioner has claimed Rs. 10,00,000/- as compensation on account of the injuries sustained by her in the accident.
3. Written statement have been filed by respondents No. 1 & 2 wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition as false.
4. The written statement has been filed by respondent no.3/ insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition. The insurance company has given legal offer to the petitioner but the same was not acceptable to the petitioner.
Suit No. 129/13 Page No. 2/125. After hearing the arguments and pleading of the parties, following issues were framed for consideration on 12/08/2013.
1.Whether the petitioner suffered injuries in an accident that took place on 18/08/2012 at about 5.15 p.m involving motor cycle bearing No. DL 1LP -1594 driven by the Respondent No.1, owned by the Respondent no.2 and insured with the Respondent No.3? OPP
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, the petitioner has examined himself as PW-1. No other witness has been examined by the petitioner in this case.
7. The respondents have not examined any witness in their defence.
8. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioner and the learned counsel for the respondents.
My findings on various issues are as under :-
ISSUE NO. 11.Whether the petitioner suffered injuries in an accident that took place on 18/08/2012 at about 5.15 p.m involving motor cycle bearing No. DL 1LP -1594 driven by the Respondent No.1, owned by the Respondent no.2 and insured with the Respondent No.3? OPP
9. The present petition has been filed by the petitioner u/s 166 & 140 Motor Vehicle Act and the onus are upon the petitioners to prove the rash and negligent act of the respondent No. 1.
10. The petitioner examined himself as PW-1 who has well explained the mode and manner of accident. She has further deposed that on the day of accident Suit No. 129/13 Page No. 3/12 i.e on 18/08/2012 at about 5.15 p.m when she as pillion rider was coming from RML Hospital on a motorcycle bearing No. DL 8SAW-5335 and when she reached at Red Light Madipur Chowk, Peeragarhi Carriage Way, Punjabi Bagh, Delhi and waiting for green signal light, then the offending vehicle bearing No. DL -1LP-1594 (TATA ACE Tempo) which was being driven by its driver/ respondent No. 1 in rash and negligent manner and hit the her with mirror of the offending vehicle. Resultantly, the petitioner as pillion rider fell down and got injuries. The petitioner has proved the bills, Ex. PW1/1 and DAR, Ex. PW1/4(colly.). She has also proved the disability certificate Ex. PW1/6. The cross-examination carried on by the respondent No.3 is not suggestive of anything which may discard the claim of the petitioner nor the driver of the offending vehicle was not rash and negligent at the time of accident.
11. In the present case, the police have filed the Detailed Accident Report (DAR) on record pertaining to FIR No. 274/12, P. S. Punjabi Bagh u/s 279/338 IPC
12. On the aspect of negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of Suit No. 129/13 Page No. 4/12 motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
In the light of the law discussed above and after going through all the documents i.e. Final report u/s 173 Cr.P.C; FIR; site plan; seizure memo of both the involved vehicles; seizure memo of the DL, verified DL and RC ; mechanical Suit No. 129/13 Page No. 5/12 inspection report of the vehicle filed by the police in DAR as well as documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
The issue No:1 ,therefore, stands decided in favour of the petitioner/petitioners and against the respondents.
ISSUE NO. 2Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
13. NATURE OF INJURIES & REIMBURSEMENT OF MEDICAL BILLS As medical record placed on record, Ex. PW1/2 (colly), more particularly per the discharge summary issued by Thakur Ram Chandra Singh Memorial Hospital, Ex. PW1/3 suggests that the petitioner had got comp. Comm. Fracture with fracture radius. He has also proved the bill to the tune of Rs.61,655/-. The respondents have not disputed the bills. I hereby award a sum of Rs. 61,655/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS
14. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of her body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
Suit No. 129/13 Page No. 6/12"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
Keeping in view the said guidelines and permanent disability suffered by the petitioner, I hereby allow Rs. 50,000/- towards pain and sufferings.
15. COMPENSATION FOR CONVEYANCE & SPECIAL DIET Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, yet considering the nature of injuries suffered by the petitioner, her treatment papers on record and the material placed, I am of the opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 20,000/- for expenses incurred on conveyance and special diet.
LOSS OF RENDERING SERVICES TO HER REMAINING FAMILY MEMBER:
16. The copy of Election Identity Card, Ex. PW1/5 suggests the age of the petitioner as 42 years as on 01/1/1995. The date of accident is 18/08/2012. Accordingly, the petitioner was about 58 years as on the date of accident.
17. The petitioner is stated to be house wife / home maker at the time of accident. Taking into the consideration, multifarious services rendered by house wives for managing entire family in respect of accident which took place on 03/03/89 in case of Lata Wadhwa & Ors Vs. State of Bihar, reported in II(2001) ACC 316(SC), the Hon'ble 'Supreme Court held that on modest estimation, the notional income of Suit No. 129/13 Page No. 7/12 such house wife should be Rs. 3000/- per month in respect of those who are of the age group of 34 years to 59 years. The date of the accident in the case of Lata Wadhwa(supra) was 03/03/89. The date of accident in the present case is 18/08/2012. The accident in the present case accordingly took place after about 23 years of the date of accident in the case of Lata Wadhwa(supra).
18. Noting that to neutralize increase in cost of living and price index, minimum wages are increased from time- to-time. Minimum wages tend to increase by 100% every 10 years.
19. Relying upon the law laid in the case of Lata Wadhwa(supra), and there after in order to neutralize increase in cost of living and price index, on modest estimation, the notional income of the injured , household lady is taken as Rs. 6000/- per month. [ Double of the notional income taken of the deceased lady who expired on 03/03/89 in the case of Lata Wadhwa (supra)in view of the death of deceased in question having taken place after span of about 23 years from 03/03/89 as above elicited].
20. Relying upon the aforesaid case law; considering the nature of injuries and facts and circumstances of the case, the court is of the opinion that she could not have rendered the services to her family members at least 4 months. Therefore, I hereby grant of ( Rs. 6000/- x 4)=Rs. 24,000/-, as compensation towards loss of rendering services to her family members in view of the aforesaid discussion.
COMPENSATION ON ACCOUNT OF DISABILITY:
21. Petitioner as PW-1 has proved the disability certificate, Ex. PW1/6. As per the disability certificate, the petitioner had got 48% permanent physical disability in relation to her left upper limb. The said disability certificate also suggests that it is a case of Post Traumatic deformity of left hand. Though the doctor or member of the Disability Board of Guru Govind Singh Govt. Hospital has not been examined by the petitioner, yet the considering the fact that the said certificate has been proved by the Suit No. 129/13 Page No. 8/12 petitioner on record vide Ex. PW1/6 and unrebuttal testimony on this aspect by the respondents, the court has no doubt on the contents the said disability certificate.
22. On this aspect, I am being guided by the settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I in which it was held as under:-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss,that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent ( percentage ) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent ( percentage) of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment , the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation(See for example, the decisions of this court in Arvind Kumar Mishra V New India Assurance Co. Ltd.-2010(10) SCALE 298 and Yadava Kumar V. DM., National Insurance Co. Ltd. -2010(8) SCLE
567)"Suit No. 129/13 Page No. 9/12
23. The petitioner mentioned in her petition that he was home maker at the time of accidentand it appears me from overall circumstances 48% permanent physical disability in relation to her left upper limb shall affect to the extent of 30% towards her rendering of services to her family members.
24. Accordingly the petitioner was 58 years of age as on the date of accident for which the relevant multiplier '9' ( for the age group of 56 to 60 years) as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08. Therefore, the total loss of earning capacity comes out to be Rs. 1,94,400/- =( Rs. 6000/-X 12 X 9x 30/100). I also grant Rs. 25,000/- compensation towards loss of amenities of life and enjoyment of life.
The total compensation is assessed as under:-
Treatment expenses: Rs. 61,655/-
Pain and sufferings: Rs. 50,000/-
Conveyance charges &
Special diet charges Rs. 20,000/-
Loss of rendering of
services to her family
members Rs. 24,000/-
Compensation on account of
disability: Rs. 1,94,400/-
Compensation on account of
loss of amenities of life and
enjoyment of life Rs. 25,000/-
Total: Rs. 3,75,055/-
25. RELIEF:
I award Rs. 3,75,055/- (Rupees Three Lacs Seventy Five Thousand Fifty Five Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e.,22/02/2013 (DAR), till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the Suit No. 129/13 Page No. 10/12 petitioner and against the respondents on account of their liability being joint and several.
26. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest quarterly from the said FDRs.
27. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No. 3 is directed to deposit the award amount within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
28. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. Chanra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332)
29. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Suit No. 129/13 Page No. 11/12 Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
30. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
31. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
32. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. Chanra Mohan Ojha, Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332) for their convenience.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 12/10/2015.
Announced in the open court on 10th of August, 2015 ( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 10/08/2015 Suit No. 129/13 Page No. 12/12 Vimla Vs Dharmveer Suit No. 129/13 `0/08/2015 Present: Proxy counsel for petitioner Sh. S. K. Sharma, Ld. Counsel for insurer Judgment announced vide separate sheets of even date. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 12/10/2015.
( RAJ PAUL SINGH TEJI ) Judge, MACT (WEST-01) Delhi 10/08/2015 Suit No. 129/13 Page No. 13/12