Delhi District Court
Sh. Sanjeev Kumar S/O Sh. Hawa Singh vs Sh. Sameer S/O Sh. Ram Singh on 26 August, 2016
IN THE COURT OF MS. SANTOSH SNEHI MANN,
JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL02, WEST DISTRICT,
TIS HAZARI COURTS, DELHI.
Petiton No.: 76525/2016
Sh. Sanjeev Kumar S/o Sh. Hawa Singh
R/o: House No. 33/6, Johri Nagar, Line Par,
Bahadurgarh, District Jhajjar, Haryana
(Injured) .......... Petitioner
Versus
1. Sh. Sameer S/o Sh. Ram Singh
R/o: Village Rattanpura, Tehsil Bhadra,
District Hanumangarh, Rajasthan
Also at:
C/o: Punia Construction Company
Plot No. 197, Qadipur Industrial Area,
Pataudi Road, Gurgaon, Haryana
(Driver)
2. M/s Punia Construction Company
Plot No. 197, Qadipur Industrial Area,
Pataudi Road, Gurgaon, Haryana
(Owner)
3. The New India Assurance Company Limited
Jeevan Bharti Building, Connaught Place,
New Delhi
2 nd Address:
The New India Assurance Company Limited
SCO - 182183, Red Square Market,
Hissar, Haryana
(Policy No. 35340031120100000485
Valid from 12.09.2012 to 11.09.2013)
Insurer of Vehicle No. HR55P0880
(Insurer) ....... Respondents
Date of Institution : 08.11.2013
Arguments heard on : 08.08.2016
Judgment pronounced on : 26.08.2016
Petiton No.: 76525/2016 Page No. 1 of 17
AWARD
1. This is a claim petition under the Motor Vehicles Act, 1988 (M. V. Act) filed by Sanjeev Kumar (petitioner) for compensation of Rs. 10,00,000/ (Rupees Ten Lacs Only) with interest @ 18% p.a., for the injuries suffered by him in a vehicular accident on 01.09.2013 with respect to which FIR No. 185/2013, under Section 279/337 IPC was registered at PS Mundka. Charge sheet under Section 279/338 IPC has been filed against Sameer (Respondent No. 1), driver of Truck bearing Registration No. HR55P0880 (offending vehicle).
2. Detailed Accident Report (DAR) has been filed by the Investigating Officer (IO) alongwith copies of the criminal proceedings including FIR and the chargesheet.
3. Brief facts of the vehicular accident as averred in the Claim Petition and DAR are that on 01.09.2013 at about 12.00 O'clock in the midnight at Mundka Metro Station Red Light, Rohtak Road, petitioner Sanjeev Kumar alongwith his friend Dinesh was returning home on the motorcycle bearing Registration No. DL9SAH7552, when after taking UTurn his motorcycle was hit from behind by the offending vehicle. Petitioner was driving the motorcycle and his friend was pillion rider. Consequently, they both suffered injuries. M/s Punia Construction Company (Respondent No. 2) is the registered owner of the offending vehicle, which was insured with The New India Assurance Company Limited (Respondent No. 3).
4. Joint written statement has been filed by the respondents No. 1 and 2, wherein preliminary objection is taken that accident occurred due to negligence of the petitioner himself, who had taken the UTurn wrongly without giving any indication. On merits, it is denied that the accident was caused due to rash and negligent driving by respondent No.1.
5. The New India Assurance Company Limited (Respondent No. 3) has filed the detailed reasoned reply and offered to pay Rs. 52,944/ as compensation to the petitioner, which was not accepted by him.
Petiton No.: 76525/2016 Page No. 2 of 176. From the pleadings of the parties, contentions raised and material on record, the following issues were framed by Ld. Predecessor vide order dated 01.11.2014:
1. Whether the petitioner Sh. Sanjeev Kumar suffered injuries in an accident that took place on 01.09.2013 at about 11.55 pm involving Truck bearing No. HR 55P0880 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3/Insurance Company? OPP
2. Whether the petitioner is entitled for compensation?
If so, to what amount and from whom?
3. Relief
7. In the evidence, petitioner Sanjeev Kumar has examined himself as PW1 and has deposed on affidavit Ex. PW1/A. He filed photocopies of his Driving License as Ex. PW1/1, Matriculation Certificate as Ex. PW1/2, MarkSheet of Bachelor of Computer Application as Ex. PW1/3 and Aadhaar Card as Ex. PW1/24, originals of which were produced by the witness during evidence, which were seen and returned. He has filed Discharge Summary of Sonia Hospital as Ex. PW1/5, final bill of Sonia Hospital as Ex. PW1/6, original Cash Memos of medicine purchased as Ex. PW1/7 to Ex. PW1/17, Medical Emergency Certificate issued by Sonia Hospital as Ex. PW1/18, Certificate of Proficiency issued from TATA Infotech Education as Ex. PW1/19, Diploma issued from DICS as Ex. PW1/20, Certificate issued from New K.D.A.V. Computer Centre as Ex. PW1/21 and Disability Certificate issued by Guru Gobind Singh Government Hospital as Ex. PW1/22. The witness has also relied on the DAR, which is collectively exhibited as Ex. PW1/23. PW1 has filed his photograph in injured condition as Ex. PW1/4 and photocopy of his Aadhaar Card as Ex. PW1/24, the original of which was produced during evidence.
Petiton No.: 76525/2016 Page No. 3 of 178. PW2 Sh. Manoj Mann, Security Supervisor & Field Officer of Sonia Hospital produced the treatment record of the petitioner as Ex. PW2/2, bills as Ex. PW2/1 & Ex. PW2/3 and prescriptions collectively as Ex. PW2/R3/1.
9. PW3 Dr. Navneet Rustagi, Orthopedics Special, Guru Gobind Singh hospital has proved the Disability Certificate as Ex. PW1/22, according to which petitioner has suffered 25% permanent physical disability in relation to his both lower limbs.
10. No evidence has been led by any of the respondents despite being opportunity.
11. I have heard Sh. Mahender Malhotra, counsel for the petitioner, Sh. Ritesh Kumar Pandey, counsel for the respondents No. 1 & 2 and Sh. D. K. Sharma, counsel for the respondent No. 3 Insurance Company. I have carefully perused the record.
12. My findings on the issues are as under:
Issue No. 1:
Whether the petitioner Sh. Sanjeev Kumar suffered injuries in an accident that took place on 01.09.2013 at about 11.55 pm involving Truck bearing No. HR55P0880 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3/Insurance Company? OPP In a claim petition under Section 166 of the M. V. Act, onus is on the claimant/petitioner to prove that he or she suffered injuries in a vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
13. Petitioner Sanjeev Kumar has deposed in the affidavit (Ex. PW1/A) that on 01.09.2013 at about midnight he was driving the motorcycle bearing Registration No. DL9SAH7552, carrying his friend Dinesh on the pillion seat. As he took UTurn, his motorcycle was hit from behind by the Truck bearing Registration No. HR55P0880. It is alleged that the truck was driven at a very fast speed in a rash and negligent manner by the Petiton No.: 76525/2016 Page No. 4 of 17 respondent No. 1.
14. In the crossexamination by the counsel for the respondent No. 3 Insurance Company, PW1 denied that the accident took place due to his fault. He has not been crossexamined by respondents No. 1 & 2 despite being given opportunity.
15. It is a settled legal position that while deciding a petition under Section 166 of the M. V. Act, the Claims Tribunal has to decide negligence on the touch stone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under Section 166 & 140 of the M. V. Act.
16. Nevertheless, it is also a settled legal position that in a claim petition under Section 166 of the M. V. Act, burden is on the claimants/petitioners to prove negligence. The law to this effect declared in Minu B Mehta Vs. Balkrishna Ramchandra Nayan (1977) 2 SC 441 was reiterated by the Supreme Court in Oriental Insurance Company Limited Vs. Meena Variyal 2007 (5) SCC 428, which has been followed by Hon'ble High Court of Delhi in a recent case, New India Assurance Co. Ltd. Vs. Devki & Ors., MAC APP 165/2013 decided on 29.02.2016.
17. DAR and copies of criminal proceedings filed alongwith the DAR are admissible in evidence under Rule 7 of the Motor Accidents Claims Tribunal Rules, 2008 and deemed to be true until proved to be contrary. DAR and copies of criminal proceedings, filed on record, have not been challenged or controverted by any of the respondents.
18. It is not disputed by any of the respondents that the Truck bearing Petiton No.: 76525/2016 Page No. 5 of 17 Registration No. HR55P0880 was involved in the accident. It is also not disputed that Sameer (Respondent No. 1) was driving the offending vehicle at the time of the accident.
19. On the issue of rash and negligent conduct of respondent No. 1, deposition of petitioner as PW1 in the affidavit is very specific that his motorcycle was hit from behind by the offending vehicle when he had taken UTurn at the spot. There is no crossexamination of PW1 on this fact by any of the respondents and, therefore, his testimony about the manner of the accident has gone unrebutted.
20. Site Plan shows MarkA as the spot of the accident, which is the traffic lights manned crossing, giving access and way to the vehicles to switch over the road. The time of the accident was midnight when the traffic on the road would not be heavy. Had the respondent No. 1 been reasonably vigilant and taken due care, he could have easily seen the motorcyclist taking UTurn at the traffic light and would have avoided hitting on its back side. It is not the defence of respondent No. 1 that petitioner suddenly came infront of him after taking UTurn wrongly at the spot. Neither such suggestion has been given to PW1 in the crossexamination.
21. The Site Plan corroborates the deposition of PW1 about the place of the accident. His deposition is also supported by the Mechanical Inspection Reports of the two vehicles involved in the accident, which shows fresh damage on the rear portion of the motorcycle and front bumper of the truck (offending vehicle). The two vehicles involved in the accident would have such damage when the truck would hit the motorcycle from behind.
22. Testimony of PW1 is cogent and trustworthy, which has not only gone unrebutted about the manner of the accident, but is also corroborated by the criminal proceedings i.e. Site Plan and Mechanical Inspection Reports, which clearly shows rash and negligent conduct of Sameer (Respondent No. 1), driver of the offending vehicle.
23. MLC of the petitioner Sanjeev Kumar shows that he was brought to Sonia Petiton No.: 76525/2016 Page No. 6 of 17 Hospital, Nangloi, Delhi with the alleged history of Road Traffic Accident. Nature of injury is mentioned in the MLC as 'grievous'. The cause of injury and its nature mentioned in the MLC has gone unrebutted
24. On the basis of evidence on record, above observations and discussion, it is proved that the accident involving Truck bearing Registration No. HR55 P0880 took place due to rash and negligent driving of Sameer (Respondent No. 1) and further that petitioner/injured Sanjeev Kumar suffered grievous injury in this accident.
Issue No. 1 is decided in favour of the petitioner and against the respondents.
25. Findings on Issue No. 2:
Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
In view of the findings on Issue No. 1, petitioner/injured Sanjeev Kumar, who was injured in the vehicular accident, is entitled for compensation for the injuries suffered.
26. In Raj Kumar vs. Ajay Kumar & Another (2011) 1 SCC 343, Hon'ble Supreme Court of India has laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
5 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 far 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 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 his inability to earn as much as he used to earn or could have earned.Petiton No.: 76525/2016 Page No. 7 of 17
6 The heads under which compensation is awarded in personal in jury cases are the following:
Pecuniary damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, trans portation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability
(iii) Future medical expenses.
Nonpecuniary damages (general damages)
(iv) Damages to pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii), (b), (iii), (v) and (vi) relating to loss of future 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.
PECUNIARY DAMAGES Expenses relating to treatment, hospitalization and medicines
27. As per the MLC of the petitioner filed alongwith DAR, he was admitted in Sonia Hospital on 02.09.2013 with the alleged history of Road Traffic Accident and nature of injury is mentioned as 'grievous'.
28. Petitioner has filed the Discharge Slip of Sonia Hospital as Ex. PW1/5. PW2 Sh. Manoj Mann, Security Supervisor & Field Officer of Sonia Hospital produced the entire treatment record of the petitioner as Ex. PW 2/2 (Colly). The treatment record filed by PW1 and produced by PW2 has not been challenged by any of the respondents.
29. As per the treatment record produced by PW2 from Sonia Hospital, petitioner was admitted in the hospital on 02.09.2013 and was discharged on 05.09.2013. Nature of injury was diagnosed as 'fracture of right femur with multiple abrasions'. The treatment given includes surgical Petiton No.: 76525/2016 Page No. 8 of 17 intervention on 02.09.2013. Petitioner was once again admitted in the Sonia Hospital on 30.09.2013 and was discharged on 01.10.2013, as per the Discharge Card Ex. PW1/5. The treatment given was skin granting of left foot.
30. According to testimony of PW2 Sh. Manoj Mann and the treatment record of the petitioner produced by him, patient Sanjeev Kumar had paid Rs. 47,000/ for treatment during his first admission in the hospital and Rs. 19,000/ for treatment during second admission. Payment bills have been produced as Ex. PW2/1 and Ex. PW2/3 respectively. The treatment record and the bills produced by PW2 are trustworthy as nothing has come in the crossexamination of this witness to create any doubt about the record produced.
31. Petitioner has filed the original cash memos of the medicines purchased by him (Ex. PW1/7 to Ex. PW1/17), amounting to Rs. 13,197. They are in the name of the petitioner and coincide with the period of treatment. Nothing has come on record to create any doubt about the authenticity and genuineness of the bills.
32. On the basis of evidence brought on record, petitioner is entitled for Rs. 79,197/ (Rs. 47,000/ + Rs. 19,000/ + Rs. 13,197/) towards expenses relating to treatment, hospitalization and medicines. Expenses towards conveyance and food (Special Diet)
33. According to the treatment record filed, petitioner was under active treatment at Sonia Hospital for about a month, which includes hospitalization on two occasions. Considering the nature of injury suffered by the petitioner, he must have visited the hospital as an OPD Patient for followup for atleast two (02) months after his discharge. Therefore, he incurred expenditure on transportation for hospital visits. He also required special diet for speedy recovery during the period of treatment.
34. In the facts and circumstances of this case, I am of the opinion that an amount of Rs. 6,000/ (Rupees Six Thousand Only) towards Petiton No.: 76525/2016 Page No. 9 of 17 Conveyance and Rs. 15,000/ (Rupees Fifteen Thousand Only) towards Special Diet would be just and fair compensation under this head. Attendant Charges
35. In DTC vs. Lalit. AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that the victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services.
36. In United India Insurance Company Limited vs. Rama Swamy and Others, 2012 (2) T. A. C. 34 (Del.), value of gratuitous services rendered by a family member of the claimant has been assessed at Rs. 2,000/ per month.
37. Keeping in view the injury suffered by the petitioner, body parts involved, period of hospitalization and duration of treatment, he would have required assistance of a family member for atleast three (03) months. Therefore, petitioner/injured is entitled for compensation of Rs. 6,000/ {(Rupees 2,000 X 03) (Rupees Six Thousand Only)} towards the attendant charges.
Loss of earning during the period of treatment
38. Petitioner has claimed that he was working as a Data Entry Operator in ICSIL, Okhla, New Delhi on monthly salary of Rs. 9,400/ and that due to the injury and permanent disability, he suffered loss of income during the period of treatment.
39. Petitioner has not fled any evidence in support of his employment. Therefore, his earning capacity is assessed on the basis of his educational and professional qualification. He has filed on record Matriculation Certificate (Ex. PW1/2), ResultcumDetailed Marks Card of Bachelor of Computer Application from Maharshi Dayanand University, Rohtak (Ex. PW1/3), Certificate of Proficiency of completing the Course in Operating System Fundamentals, MS Office, Networking Concepts and CProgramming Language from TATA Infotech Education (Ex. PW1/19), Certificate of Diploma Course in Hardware and Networking by DICS Petiton No.: 76525/2016 Page No. 10 of 17 Computer Education (Ex. PW1/20) and Certificate from New K.D.A.V. Computer Center for completing the Course in C, DATA Structure (Ex. PW 1/21).
40. The academic record and certificates of technical education produced by the petitioner have gone unrebutted and there is no reason to disbelieve them. Keeping in view the fact that petitioner holds a Degree in Computer Application from Maharshi Dayanand University, Rohtak, besides technical qualification in computer, his income is assessed on the basis of Minimum Wages Rate of Graduate prevailing in Delhi. Accident took place on 01.09.2013, when the Minimum Wages Rates of Graduate in Delhi was Rs. 10,218/.
41. Petitioner suffered fracture of right femur with multiple abrasions. He was admitted in the hospital on two occasions where he underwent surgical intervention on 02.09.2013. He remained under treatment for three (03) months and could not work during this period, resulting loss of income.
42. Accordingly, considering the Minimum Wages Rate of Graduate prevailing in Delhi at the time of accident and revised subsequently in 01 month, total loss of income suffered by him would be Rs. 31,590/ (Rupees Thirty One Thousand Five Hundred Ninety Only) {Rs. 10,218/ (wages on 01.09.2013) X 01 month) + Rs. 10,686/ (revised wages on 01.10.2013) X 02 months}.
Loss of future earning on account of permanent disability
43. In Raj Kumar (Supra) broad criteria for assessment of permanent disability for ascertaining the purpose of future loss of earning was discussed and Hon'ble Apex court laid down step by step procedure for assessment of disability and for ascertainment of the effect of the permanent disability on the actual earning capacity. Relevant paras of the judgment are reproduced as under:
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability.Petiton No.: 76525/2016 Page No. 11 of 17
This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation,, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions so that he continue to earn or can continue to earn his livelihood.
44. PW3 Dr. Navneet Rustagi, Orthopedics Special, Guru Gobind Singh hospital has proved the Disability Certificate as Ex. PW1/22, according to which petitioner has suffered 25% permanent physical disability in relation to his both lower limbs due to post traumatic stiffness of right hip, knee and left ankle joint. Nothing has come in the crossexamination of this witness to create any doubt about opinion of the Medical Board with respect to physical disability suffered by the petitioner.
45. Petitioner was not in a regular or permanent job at the time of the accident and his earning capacity has been assessed on the basis of Minimum Wages Rate of a Graduate keeping in view his educational qualifications.
Petiton No.: 76525/2016 Page No. 12 of 17Though, petitioner has sound educational qualification, but regular and permanent employments are hard to get in private sector. Skilled jobs in the private sector also involves lot of touring and with 25% of permanent physical disability of both lower limbs, functional ability of the injured/petitioner to work would be adversely affected. Considering the percentage of the physical disability of the body parts involved, I assess functional disability of petitioner in the present case to be atleast 15%.
46. As observed in the earlier part of the judgment, petitioner would not have been able to work for atleast 03 months after the accident. For the purpose of ascertaining the future loss of earning, assumed income of the petitioner after recovery period is to be taken into consideration. Accident took place on 01.09.2013. After recovery period of 03 months, petitioner would be fit to work in December, 2013 when the Minimum Wages Rate of Graduate was Rs. 10,686/. Accordingly, loss of future earning of the petitioner would be Rs. 1,603/ per month (15% of Rs. 10,686/). On this basis, annual loss of future earning would be Rs. 19,236/ (Rs. 1,603 X 12), which is ascertained as multiplicand.
Age of the petitioner
47. Petitioner has placed on record his Matriculation Examination Certificate (Ex. PW1/2) according to which his Date of Birth is 10.11.988. This document has not been disputed and there is no reason to disbelieve the Date of Birth of the petitioner, mentioned therein. Accident took place on 01.09.2013. Accordingly, age of petitioner was 24 years & 09 months at the time of the accident. Applying the criteria of multiplier laid down in Sarla Verma (Smt) and Others vs. Delhi Transport Corporation and Another (2009) 6 Supreme Court Cases 121 the multiplier applicable in this case would be 18.
48. Therefore, the total loss of future earning of the petitioner on account of physical disability would be Rs. 3,46,248/ (Rupees. Three Lacs Forty Six Thousand Two Hundred Forty Eight Only) {Rs. 19,236/ (multiplicand) X Petiton No.: 76525/2016 Page No. 13 of 17 18 (multiplier)}.
Future Medical Expenses
49. There is no evidence on record to show that petitioner is required to take future treatment and consequently bear the expenses for the treatment. Therefore, no compensation is awarded to the petitioner under this head. NONPECUNIARY DAMAGES (GENERAL DAMAGES) Pain, Sufferings & Trauma
50. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, Hon'ble High Court of Delhi in Satya Narain vs. Jai Kishan, FAO No: 709/02, date of decision:
02.02.2007 made following observations :
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 corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
51. Applying the above criteria to the facts of the present case, keeping in view the nature of injury, body parts involved and period of hospitalization, I am of the opinion that an amount of Rs. 50,000/ (Rupees Fifty Thousand Only) would be just and fair compensation for pain, sufferings and trauma suffered by the petitioner as consequences of injury. Loss of Amenities of Life
52. Petitioner has suffered 25% permanent physical disability in relation to his both lower limbs due to the injury suffered by him in the vehicular accident. He would suffer on account of this disability throughout his life. Therefore, I am of the opinion that an amount of Rs. 50,000/ (Rupees Fifty Thousand Only) would be just and fair compensation for loss of amenities of life.
Petiton No.: 76525/2016 Page No. 14 of 1753. Computation of Compensation:
The total compensation is assessed as under:
Sl. No. Heads Amount
1. Expenses relating to treatment, hospitalization & medicines 79,197
2. Expenses towards Conveyance and Food (Special Diet) 21,000
3. Attendant Charges 6,000
4. Loss of earning during the period of treatment 31,590
5. Loss of future earning capacity on account of disability 3,46,248
6. Future medical expenses Nil
7. Pain, Sufferings & Trauma 50,000
8. Loss of amenities of life 50,000
Total 5,84,035
Accordingly, Petitioner Sanjeev Kumar is entitled to get Rs. 5,84,035/ (Rupees Five Lacs Eighty Four Thousand Thirty Five Only) as compensation.
Liability:
54. Respondent No. 1 Sameer is liable to pay compensation being the driver of the offending vehicle i.e., Truck bearing Registration No. HR55P0880 as the accident took place due to his rash and negligent driving. Respondent No. 2 M/s Punia Construction Company is vicariously liable for the conduct of driver, being the owner of the offending vehicle.
55. It is not disputed by The New India Assurance Company Limited (Respondent No. 3) that the offending vehicle i.e. Truck bearing Registration No. HR55P0880 was duly insured with the Insurance Company vide Policy No. 35340031120100000485 valid from 12.09.2012 to 11.09.2013, including the date of accident There is no statutory defence pleaded. Therefore, all the respondents are jointly and severally liable to pay compensation to the petitioner. However, since the offending vehicle Petiton No.: 76525/2016 Page No. 15 of 17 was duly insured to cover the third party risk, respondent No. 3 Insurance Company is under the statutory liability to pay the compensation to the petitioner.
Relief:
56. In view of the findings on Issues No. 1 & 2, I award an amount of Rs. 5,84,035/ (Rupees Five Lacs Eighty Four Thousand Thirty Five Only) as compensation to the petitioner/injured Sanjeev Kumar. Petitioner is also entitled to get interest @ 9% p.a. from the date of filing of the Claim Petition i.e. 08.11.2013 till its realisation. Amount of Interim Award, if paid any, be deducted from the Award amount.
Mode of payment and disbursement:
57. Respondent No. 3/Insurance Company shall deposit the award amount within 30 days from the date of Award in the State Bank of India, Tis Hazari Branch, Delhi in the name of the petitioner under intimation to the petitioner and the Tribunal. In default of payment within the prescribed period, respondent No. 3/Insurance Company shall be liable to pay interest @ 12% p.a. for the period of delay till its realisation.
58. While making the deposit, Insurance Company shall mention the particulars of this case, name of the Tribunal and the date of decision on the back side of the cheque. Insurance Company shall also file copy of the award attested by its responsible officer in the bank at the time of deposit. Insurance Company is further directed to place on record proof of deposit of the award amount, proof of delivery of notice to the petitioner in respect of deposit of the award amount and complete details in respect of calculation of interest etc. in the Tribunal within 30 days with effect from today.
59. In order to ensure that the compensation money is not frittered away, 50% of the award amount shall be kept in FDR in the name of the petitioner for a period of five (05) years. No loan or advance shall be allowed against the deposit. However, petitioner can withdraw the quarterly interest from the deposit.
Petiton No.: 76525/2016 Page No. 16 of 1760. Petitioner shall open account in State Bank of India, Tis Hazari Branch, Delhi. Manager of the Bank shall comply and release the award amount to the petitioner in terms of the Award.
61. FormIV prescribed in clause 29 of Modified Claims Tribunal Agreed Procedure is annexed with the Award in compliance of order of Hon'ble High Court of Delhi dated 12.12.2014 in FAO NO. 842/2003 titled Rajesh Tyagi Vs. Jaibir Singh & Ors.
62. Copy of the Award be given to the parties free of cost.
63. Copy of the Award be also sent to the Court of concerned Metropolitan Magistrate.
64. Nazir is directed to prepare a separate file for compliance and be put up on 06.10.2016.
65. File be consigned to Record Room.
Announced in the open Court (Santosh Snehi Mann)
on 26.08.2016 Judge, Motor Accident Claims Tribunal02,
(KSR) West District, Tis Hazari Courts, Delhi
Petiton No.: 76525/2016 Page No. 17 of 17
FORM - IV
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MONITORED IN THE AWARD
1. Date of Accident 01.09.2013
2. Date of intimation of the accident by the 02.09.2013 Investigating Officer to the Claims Tribunal (Clause 2
3. Date of intimation of the accident by the 10.03.2014 Investigating Officer to the Insurance Company (Clause 2)
4. Date of filing of Report under Section 173 Not mentioned in the DAR Cr.P.C. before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information 19.03.2014 Report (DAR) by the Investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 01.04.2014 Company
7. Date of service of DAR on the Claimant(s) 19.03.2014 (Clause 11)
8. Whether DAR was complete in all respects? Yes (Clause 16)
9. If not, state deficiencies in the DAR Not Applicable
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated 01.04.2014 Officer by the Insurance Company (Clause
19)
13. Name, address and contact number of the Sh. D. K. Sharma, counsel Designated Officer of the Insurance Company for the New India Assurance (Clause 19) Company Limited
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted Yes the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause 22)
16. Whether there was any delay or deficiency on No the part of the Designated Officer of the Insurance Company? If so, whether any action/ direction warranted?
17. Date of response of the Claimant(s) to the Contested Award offer of the Insurance Company (Clause 23)
18. Date of Award 26.08.2016
19. Whether the Award was passed with the Not Applicable consent of the parties? (Clause 22)
20. Whether the Claimant(s) examined at the No time of passing of the Award to ascertain his/their financial condition? (Clause 26)
21. Whether the photographs, specimen No signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the Award? (Clause 26)
22. Mode of disbursement of the Award amount Through State Bank of India, to the Claimant(s) (Clause 28) Tis Hazari Branch, Delhi
23. Next date for compliance of the Award 06.10.2016 (Clause 30) (Santosh Snehi Mann) Judge, Motor Accident Claims Tribunal02, West District, Tis Hazari Courts, Delhi