Delhi District Court
Santosh Kumar vs . Netrapal Singh on 11 May, 2018
Santosh Kumar vs. Netrapal Singh
IN THE COURT OF SH. SAMEER BAJPAI : PRESIDING OFFICER : MACT
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. : 75664/16
Santosh Kumar
S/o Sh. Chote Lal
R/o L 2nd 24/1113, Sangam Vihar
New Delhi
..... Petitioner
Versus
1. Netra Pal Singh
S/o Sh. Harpal Singh
R/o 14/247, Dakshinpuri,
New Delhi ........... (Driver)
2. Neeraj Kumar
S/o Sh. Gyan Chand
R/o 14/248, Dakshinpuri,
New Delhi ........... (Owner)
3. United India Insurance Co. Ltd.
301, Akash Deep Building,
Barakhamba Road,
New Delhi - 110 017 .......... (Insurer)
..... Respondents
Date of Institution : 02.02.2016
Date of reserving of judgment/order : 23.04.2018
Date of pronouncement : 11.05.2018
Petition no. : 75664/16 1/15
Santosh Kumar vs. Netrapal Singh
J U D G M E N T :
1. By this order I shall dispose of the Detailed Accident Report (DAR) filed by SHO, police station Ambedkar Nagar for the injuries sustained by Santosh Kumar in a road accident on 23.08.2015 at 11.15 PM at bus lane from Chirag Delhi to Khanpur, near Pushpa Bhawan Metro Plant, New Delhi due to rash and negligent driving of vehicle bearing no. DL 2C M 2740 by Netrapal Singh, owned by Neeraj Kumar and insured with United India Insurance Co. Ltd.
2. Notice of the DAR was given to the respondents.
3. In their written statement respondents no.1 and 2 have denied all the averments of the DAR.
4. Respondent no.3 has filed its legal offer, however, the same was not accepted by the injured.
5. Following issues were framed vide order dated 02.03.2016 :
1. Whether Santosh Kumar sustained injuries in a road accident on 23.08.2015 at 11.15 PM at bus lane from Chirag Delhi to Khanpur near Pushpa Bhawan Metro Plant, New Delhi due to rash and negligent driving of vehicle bearing no. DL 2C M 2740 by Netrapal Singh, owned by Neeraj Kumar and insured with United India Insurance Co. Ltd.?
Petition no. : 75664/16 2/15Santosh Kumar vs. Netrapal Singh
2. To what amount of compensation the petitioner is entitled and from whom?
3. Relief.
6. Parties were, thereafter, called upon to substantiate their case by leading their evidence.
7. Smt. Mamta wife of the injured was examined as PW1. She tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/11.
8. Injured Santosh Kumar examined himself as PW2. He tendered in evidence his affidavit Ex.PW2/A. He has relied upon the documents Ex.PW1/1 to Ex.PW1/11.
9. Dr. Karan Chopra, Sr. Resident, Pt. Madan Mohan Malviya Hospital was examined as PW3. He has proved the disability certificate Ex.PW1/10. He stated that as per the disability report, the petitioner has 100% permanent physical impairment in relation to Burst Fracture D2D3 Spine with Quadriperasis with Bowl and bladder involvement.
10. I have heard arguments advanced by counsel for the parties and perused the record. My findings on the issues are as follows :
Petition no. : 75664/16 3/15Santosh Kumar vs. Netrapal Singh I S S U E N o. 1
11. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just, rational and reasonable on the basis of enquiry. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
Initially on behalf of the injured/petitioner, Smt. Mamta Devi, wife of the petitioner examined herself for the reason that the petitioner was bed ridden, but as Smt. Mamta Devi was not an eyewitness, the petitioner himself appeared in the Tribunal on wheel chair and filed his affidavit in evidence. The condition of the injured/petitioner was such that he could not even sign his statement and his thumb impression was taken.
PW2 i.e. the injured has stated that on the unfortunate day of accident i.e. on 23.08.2015 at about 11.00 PM after getting off from his duty from M/s Akash Fashion, he was going on his motorcycle bearing no. DL 3S BZ 2361 to his home via Chirag Dilli to Khanpur road. When he reached near Pushpa Bhawan Metro Plant, New Delhi, one Santro car bearing no. DL 2C M 2740 came in a rash and negligent manner from wrong side and hit his motorcycle. Due to the impact, he fell down on the road and sustained injuries. He was taken to Saket City Hospital, where his MLC was prepared.
Petition no. : 75664/16 4/15Santosh Kumar vs. Netrapal Singh During crossexamination he stated the accident had taken place on 23.08.2015 at 1011.00 PM. He further stated that the accident had occurred by Santro car bearing no. DL 2C M 2740. He further stated that he was going on his motorcycle when the offending vehicle came from front side. He denied the suggestion that he was driving his motorcycle at a high speed.
The site plan clearly support the version of the petitioner. As per the site plan, the respondent no.1 took his vehicle to the wrong side of the lane and accident happened. No other version of the accident came on record except the one as narrated by the injured/petitioner.
The statement of the petitioner and site plan clearly show that the accident happened due to rash and negligent driving by the respondent no.1. Documents filed on record show that the vehicle was owned by respondent no.2 and it was insured with respondent no.3.
Therefore, this issue is decided in favour of the petitioner and against the respondents.
I S S U E No. 212. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
13. Let me assess the compensation which the claimant is entitled for under different heads :
Petition no. : 75664/16 5/15Santosh Kumar vs. Netrapal Singh MEDICAL EXPENSES :
14. In the present case the injured has medical bills of Rs. 7,78,520/ which is rounded off to Rs. 7,78,600/. Therefore, I award Rs. 7,78,600/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
15. As per the discharge summary the petitioner was diagnosed with RTA with chest and spine injury, fracture dislocation with anterior wedging of D3 body with fracture fragments impinging and compressing the spinal cord at D2D3 level alongwith a large pre and paravertebral hematoma, bilateral hemothorax with fracture of right scapula and bilateral multiple ribs fractures. The injuries on his person were dangerous in nature. As per the disability certificate Ex.PW1/10 the injured has suffered 100% permanent physical impairment in relation to his Burst fracture D2D3 Spine with Quadripearesis with Bladder/Bowel inconvenience. Having regard to the injuries, treatment and disability of the petitioner, I award him Rs. 5,00,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET , CONVEYANCE & ATTENDANT CHARGES :
16. Petitioner has stated that he has spent Rs. 1,00,000/ on special diet and Rs. 1,00,000/ on conveyance. He further stated that he has hired a person for his daily care to whom he has paid Rs.5,000/ p.m. as attendant charges till date. The petitioner has not filed any document with regard to special diet. However, the injuries on his person were such that he must have taken special diet for his early recovery. Therefore, I award Rs. 20,000/ to the Petition no. : 75664/16 6/15 Santosh Kumar vs. Netrapal Singh petitioner towards special diet. I also award Rs. 50,000/ to the petitioner towards conveyance charges. So, the total award under this head comes to Rs. 70,000/.
As far as the attendant charges are concerned, the petitioner has stated that he has hired one person for his care to whom he is paying Rs. 5,000/ p.m. The condition of the petitioner is such that he cannot move on his own and every time he needs at least one person for his daily routines. No contrary evidence is on record. The petitioner at the time of accident was above 35 years of age. Thus, the amount towards attendant charges is calculated as Rs. 5,000 x 12 x 15 = Rs.9,00,000/. Therefore, the total award under this head comes to Rs. 9,70,000/.
LOSS OF INCOME / FUTURE INCOME :
17. The petitioner has stated that at the time of accident he was working with M/s Akash Fashion and was earning Rs. 15,000/ p.m. During cross examination he stated that he was working as a tailor in a factory at Chirag Dilli, New Delhi. In the present case the petitioner has not filed on record any document to show that he was working with M/s Akash Fashion as a tailor and was earning Rs. 15,000/ p.m. Therefore, this Tribunal has no option but to take minimum wages of a 'skilled person' which on the date of accident were Rs. 10,998/ p.m. PW3 Dr. Karan Chopra has stated that the condition of the petitioner will not improve in future. He would not be able to do any work in his whole life due to this disability. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an Petition no. : 75664/16 7/15 Santosh Kumar vs. Netrapal Singh accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". The petitioner is 100% disabled. As per the Aadhar card, the year of birth of the petitioner is 1979. The accident took place on 23.08.2015 therefore, he was above 35 years of age at the time of accident. Taking a multiplier of '15', the loss of income/future loss of income comes to Rs. 10,998 x 12 x 15 x 100% = Rs. 19,79,640/ which is rounded off to Rs. 19,80,000/. I therefore, award Rs. 19,80,000/ to the petitioner towards loss of income/future Income.
18. Loss of Amenities and Married Life : Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social and married life. I therefore, award Rs. 3,00,000/ to the petitioner towards loss of amenities and married life.
19. Expenses for Motorised Hospital Bed : The petitioner has filed quotation for Motorised 5 Functional Hospital Bed Ex.PW1/11. PW5 has stated that the petitioner would require an air bed so that he would not suffer bed soars. Considering the testimony of PW3, I award Rs. 80,000/ to the petitioner towards expenses for motorised hospital bed.
20. Thus, the total compensation awarded in favour of the petitioner is assessed as under :
Petition no. : 75664/16 8/15Santosh Kumar vs. Netrapal Singh MEDICAL EXPENSES : Rs. 7,78,600/ PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 5,00,000/ SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 9,70,000/ LOSS OF INCOME/FUTURE INCOME : Rs. 19,80,000/ LOSS OF AMENITIES & MARRIED LIFE : Rs. 3,00,000/ EXPENSES FOR MOTORISED HOSPITAL BED : Rs. 80,000/ ============ TOTAL : Rs. 46,08,600/ ============ L I A B I L I T Y
21. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1. Since the vehicle was owned by respondent no.2, so, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, respondent no.3 is contractually liable to compensate the petitioner.
22. Issue no. 2 is decided in favour of the petitioner and against the respondent no.3.
R E L I E F
23. In view of my findings, I award Rs. 46,08,600/ (Rs. Forty Six Lakh Eight Thousand Six Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the DAR till its realisation.
Out of the awarded amount, a sum of Rs. 40,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 5,00,000/ for a period of 02 years.
2. Rs. 5,00,000/ for a period of 03 years.Petition no. : 75664/16 9/15
Santosh Kumar vs. Netrapal Singh
3. Rs. 5,00,000/ for a period of 04 years.
4. Rs. 5,00,000/ for a period of 05 years.
5. Rs. 5,00,000/ for a period of 06 years.
6. Rs. 5,00,000/ for a period of 07 years.
7. Rs. 5,00,000/ for a period of 08 years.
8. Rs. 5,00,000/ for a period of 09 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
24. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
25. As per orders of Hon'ble High Court in case titled "New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as "Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
26. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent Petition no. : 75664/16 10/15 Santosh Kumar vs. Netrapal Singh no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
27. The respondent no.3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
28. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, Petition no. : 75664/16 11/15 Santosh Kumar vs. Netrapal Singh State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT No. 329. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
30. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
Petition no. : 75664/16 12/15Santosh Kumar vs. Netrapal Singh
31. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
32. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3.
33. Copy of this Award / Judgment be given to the parties for compliance.
34. The case is now fixed for compliance by the respondent no.3 for 02.07.2018.
35. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 23.08.2015 2 Date of intimation of the accident by the 25.08.2015 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 02.02.2016 (DAR) by the Investigating Officer before Petition no. : 75664/16 13/15 Santosh Kumar vs. Netrapal Singh Claims Tribunal 6 Date of service of DAR on the insurance 02.02.2016 company 7 Date of service of DAR on the claimant 02.02.2016 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether police has verified the documents Yes filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated N.A. Officer by the insurance company. 13 Name, address and contact number of the N.A. designated officer of the insurance company.
14 Whether the designated officer of the Yes insurance company submitted his report within 30 days of the DAR?
15 Whether the insurance company admitted Yes, however, the the liability? If so, whether the designated insurance company has officer of the insurance company fairly not fairly computed the computed the compensation in compensation.
accordance with law.
16 Whether there was any delay or deficiency No on 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 02.03.2016 offer of the insurance company.
Petition no. : 75664/16 14/15Santosh Kumar vs. Netrapal Singh 18 Date of the award 11.05.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the claimant(s) examined at the Wife of the time of passing of the award to ascertain petitioner/injured was his/their financial condition? examined. Financial condition was asked.
21 Whether the photographs, specimen Yes 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?
22 Mode of disbursement of the award Some amount is amount to the claimant (s). directed to be released and some amount is kept in the fixed deposit.
23 Next date for compliance of the award. 02.07.2018
Announced in the Open Court
on 11th day of May, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Petition no. : 75664/16 15/15