Delhi District Court
Additional Sessions Judge/Special ... vs Shri Lal Chand Saini on 19 December, 2009
1
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE:NDPS
TIS HAZARI COURTS: (WEST) DELHI
Suit No. : 39/09/08 (Old suit No. 58/07)
1 Shri Kamal Himmatramka
S/o Shri Gopi Ram Himmatramka
B-1/74 , First Floor, Paschim Vihar ,
New Delhi - 110 063
2 Kumari Himanshi Himmatramka
minor D/o Sh Kamal Himmatramka
Through her father and natural guardian Shri Kamal
Himmatrakma
(Date of Birth 11.12.1998) .................. Petitioners
Versus
1 Shri Lal Chand Saini
S/o Shri Ram Dev Saini
R/o Dhani Sadhuwala Ki Maunda
Neem Ka Thana, Sikar (Rajashthan)
2 Shri Mahesh Kumar Saini,
S/o Shri Devi Sahai
R/o 2 Haweli Ringus Road, Hadota
Chomu Hauoyr (Rajasthan)
3 National Insurance Company Ltd.
10,Narain Singh Road , Jaipur 302004 (Rajashtan)
(Issuing office D.O-II , Jaipur) ........... Respondents
Suit No. 38/09/08 (old suit no.59/07) 1 Shri Kamal Himmatramka S/o Shri Gopi Ram Himmatramka B-1/74 , First Floor, Paschim Vihar , New Delhi - 110 063 2 Kumari Himanshi Himmatramka minor D/o Sh Kamal Himmatramka Through her father and natural guardian Shri Kamal Himmatrakma (Date of Birth 11.12.1998) .................. Petitioners 2 Versus 1 Shri Lal Chand Saini S/o Shri Ram Dev Saini R/o Dhani Sadhuwala Ki Maunda Neem Ka Thana, Sikar (Rajashthan) 2 Shri Mahesh Kumar Saini, S/o Shri Devi Sahai R/o 2 Haweli Ringus Road, Hadota Chomu Hauoyr (Rajasthan) 3 National Insurance Company Ltd.
11,Narain Singh Road , Jaipur 302004 (Rajashtan) (Issuing office D.O-II , Jaipur) ........... Respondents Suit No. 36/09/08 (old suit no. 60/07) 1 Shri Kamal Himmatramka S/o Shri Gopi Ram Himmatramka B-1/74 , First Floor, Paschim Vihar , New Delhi - 110 063 .................Petitioner Versus 1 Shri Lal Chand Saini S/o Shri Ram Dev Saini R/o Dhani Sadhuwala Ki Maunda Neem Ka Thana, Sikar (Rajashthan) 2 Shri Mahesh Kumar Saini, S/o Shri Devi Sahai R/o 2 Haweli Ringus Road, Hadota Chomu Hauoyr (Rajasthan) 3 National Insurance Company Ltd.
12,Narain Singh Road , Jaipur 302004 (Rajashtan) (Issuing office D.O-II , Jaipur) ........... Respondents 3 Suit No. 37/09/08 (old suit no. 61/07) 1 Kumari Himanshi Himmatramka minor D/o Sh Kamal Himmatramka Through her father and natural guardian Shri Kamal Himmatrakma (Date of Birth 11.12.1998) R/o B-1/174, First Floor, Paschim Vihar , New Delhi -110 063 ............. Petitioners Versus 1 Shri Lal Chand Saini S/o Shri Ram Dev Saini R/o Dhani Sadhuwala Ki Maunda Neem Ka Thana, Sikar (Rajashthan) 2 Shri Mahesh Kumar Saini, S/o Shri Devi Sahai R/o 2 Haweli Ringus Road, Hadota Chomu Hauoyr (Rajasthan) 3 National Insurance Company Ltd.
13,Narain Singh Road , Jaipur 302004 (Rajashtan) (Issuing office D.O-II , Jaipur) ........... Respondents JUDGMENT /AWARD Vide this judgment , I shall dispose of four claim petitions U/s 166 & 140 of the Motor Vehicles Act, 1988 bearing 1) New Suit no. 39/09/08 -Old suit no.58/07 (2) Suit No. 36/09/08 - old suit no. 60/07(3) Suit No. 37/09/08-old suit no. 61/07 (4) Suit No. 38/09/08-
-old suit no.59/07 as these petitions have arisen out of the same accident which had taken place on 06.9.2006 . These petitions were consolidated vide order dated 18.8.2009 and the petition bearing New Suit No. 39/09/08 titled as Kamal Himmatramka Vs Lal Chand Saini was treated as leading case.
42 The brief resume of the facts of the cases of the petitioners are that on 6.9.06 he alongwith his wife, son and daughter namely Smt. Anju Hmmatramka , Master Onkar Himmatramka and kumari Himanshi Himmatramka were going from their residence to Khatu Shyamji on Delhi Jaipur Highway in car bearing registration no. DL 2C AC 7227 being driven by the petitioner i.e Kamal Himmatramka. When they reached at Pragpur, the truck bearing registration no. RJ 14 GA 5763 came at a very high speed in front of car on wrong side and hit the car forcefully and as a result because of the high speed of the offending vehicle his wife, and son died on the spot while he himself received multiple injuries and his daughter received grievous injuries . The deceased Anju Himmatramka was sitting in the front seat along with her husband while both the children were sitting on rear seat. The deceased Anju died on the spot . The injured were removed to BDM hospital, Kotputli where Anju Himmatramka was declared brought dead and their minor son Master Onkar Himmatramka also expired on way while being brought from Kotputli hospital to Saroj hospital, Delhi. Petitioner Kamal Himmatramka was given stitches on his left cheek and petitioner Kumari Himanshu was brought to Sir Ganga Ram Hospital and was operated upon on her right leg . 3 The petitioner in Kamal Himmatramka Vs Lal Chand Saini 5 (Suit No. 39/09/08) has claimed Rs. 80 Lacs as compensation for the fatal injuries sustained by deceased Anju Himmatramka W/o Kamal Himmatramka 4 The petitioner in Kamal Himmatramka Vs Lal Chand Saini (Suit No. 36/09/08) has claimed Rs. 3 Lacs as compensation for the injuries sustained by him.
5 The petitioner in Kamal Himmatramka Vs Lal Chand Saini (Suit No. 37/09/08) has claimed Rs. 30 Lacs as compensation for the injuries sustained by his daughter.
6 The petitioner in Kamal Himmatramka Vs Lal Chand Saini (Suit No. 38/09/08) has claimed Rs. 25 Lacs as compensation for the fatal injuries sustained by deceased Master Onkar Himmatramka S/o Kamal Himmatramka.
7 The respondents are common in all the petitions. The respondent no. 1 and 2 are the owner and driver whereas respondent no.3 is the insurer of the offending vehicle. All the respondents have been served and they have filed their written statement.
8 The respondent no. 1 and 2 have filed their separate written statements but had taken almost similar objections to the petition. The respondent no. 1 has taken the preliminary objection that he is not liable to pay compensation to the petitioners as the alleged accident has not been caused by respondent no. 1. It is alleged that the vehicle is insured with the respondent no. 3 i.e Insurance 6 company and respondent no. 3 is liable to pay the compensation. While replying parawise , respondent no. 1 has stated that he was not driver of the alleged vehicle and has not caused the alleged accident with the alleged vehicle of the petitioners on the alleged date and alleged point of time and he had no concern or connection with the alleged accident or petitioners.
9 Respondent no. 2 i.e owner of the vehicle in his written statement has also similarly stated that accident was not caused by the offending vehicle owned by him and he was not liable to pay any compensation to the petitioners; the alleged vehicle was insured with respondent no. 3 who is liable and responsible to pay the compensation to the petitioners.
10 The respondent no. 3 i.e National Insurance Company Ltd. has denied the claim of the petitioners on the ground that if any accident was occurred then it was due to the rash and negligent act on the part of the driver of the car bearing registration no. DL 2C AC 7277; the driver, owner, insurer of the above vehicle are not made party ;in the claim petition. Hence the claim petition is liable to be dismissed. It is however admitted that Truck bearing no. RJ 14 GA 5763 was insured vide its policy no. 370200/31/06/6300000100 valid from 7.4.2006 to 6.4.2007.
11 Vide order dated 18.3.2008 . the Ld. Predecessor has framed the following issues in petition no. 39/09/08 -old suit no. 58/07 1 Whether the deceased Smt. Anju Himmatramka had 7 sustained fatal injuries on 6.9.2006 at about 10 a.m at Pragpura, District Jaipur on Delhi Jaipur Highway due to rash and negligent driving of respondent no.1 Shri Lal Chand while driving Truck bearing registration no. RJ 14 GA 5763 2 Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ? 3 Relief 12 Vide order dated 24.12.2008 . the Ld. Predecessor has framed the following issues in petition no. 36/09/08 -old suit no. 60/07 1 Whether the petitioner Shri Kamal had sustained grievous injuries on 6.9.2006 while driving car no. DL 2C AC 7727 on Delhi Jaipur Highway at Pragpura Distt Jaipur due to rash and negligent driving of respondent Shri Lal Chand Saini while driving vehicle Truck bearing registration no. RJ 14 GA 5763 ?
2 Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ? 3 Relief 13 Vide order dated 24.12.2008 . the Ld. Predecessor has framed the following issues in petition no. 37/09/08 -old suit no. 61/07 1 Whether the petitioner Kumari Himanshi had sustained grievous injuries on 6.9.2006 as passenger in Car no. DL 2C AC 7227 on Delhi Jaipur Highway at Pragpura Distt. Jaipur due to rash and negligent driving of respondent Shri Lal Chand Sainiwhile driving vehicle truck bearing registration no. RJ 14 GA 5763 2 Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ? 3 Relief 14 Vide order dated 18.03.2008 . the Ld. Predecessor has framed the following issues in petition no. 38/09/08 -old suit no. 59/07 1 Whether the deceased Master Onkar Himmatramka had sustained grievous injuries on 6.9.2006 at about 10 a.m at Pragpura , District Jaipur on Delhi Jaipur Highway due to 8 rash and negligent driving of respondent no. 1 Shri Lal Chand while driving truck bearing registration no. RJ 14 GA 5763 ?
2 Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ? 3 Relief ISSUE NO. 1 (In suit No. 39/09/08 -old suit no. 58/07 ; Suit No. 38/09/08 -old suit no. 59/07 ; Suit no. 36/09/08 -old suit no. 60/07; Suit No. 37/09/08-old suit no. 61/07) 15 In order to prove that the accident was caused by respondent no. 1 while driving the offending vehicle bearing no. RJ 14 GA 5763 in rash and negligent manner, the petitioner Kamal Himmatramka has examined himself as PW1 and Shri Vikesh Bansal was examined as PW2.
16 PW1 Kamal Himmatramka in his deposition as PW1 has reiterated the averments of the claim petition. In his testimony vide affidavit Ex. P-1, he has deposed that on 6.9.2006 he along with his wife Anju Himmatramka , son-Master Onkar Himmatramka and daughter -Kumari Himanshi Himmatraka were going from their residence to Khatu Shyamji on Delhi Jaipur Highway in Maruti Balino bearing registration no. DL 2C AC 7227 .When they reached at Pragpur, truck bearing registration no. RJ 14 GA 5763 came at a very high speed in front of his car i.e from his side and hit his car forcefully , as a result of the which his wife Anju Himmatramka 9 died on the spot and she was removed to BDM Hospital , Kothputli where she was declared brought dead and his son Master Onkar also received fatal injuries and was taken to BDM Hospital from where he was brought to Delhi Hospital namely Saroj Hospital but died on the way to Delhi . In his affidavit Ex. P-1 ( Suit no. 36/09/08 -old suit no. 60/07), he has deposed that he had received multiple injury on his forehead , left cheek and on right shoulder and his collar bone was fractured and separated from each other on both hands . He further deposed that he was removed to BDM hospital, Kothputli where he was given stitches on his left cheek and received remaining treatment from Sir Ganga Ram Hospital , Rajinder Nagar , New Delhi and remained confined to bed for a period of three months . In his affidavit Ex.P-1 (Suit No.37/09/08-old suit no. 61/07 ) he has deposed that his daughter had received injuries and suffered fractures in her both legs and injuries in her spinal cord besides other injuries and she was taken to BDM Hospital, Kothputli from where she was brought to Sir Ganga Ram Hospital, New Rajinder Nagar , New Delhi where she was operated upon and her right leg was still not working .
17 PW1 was cross examined on behalf of insurance company on merit after seeking permission under section 170 of the Motor Vehicle Act. In his cross examination by Ld. Counsel for Insurance company he has deposed as under :-
10
'I have no knowledge if the Jaipur- Delhi side of the road was closed and whole traffic was coming on Delhi- Jaipur side of the road vol. There was no sign board in that regard . It is correct to suggest that there was head on collision between the vehicles coming from the opposite directions. ' He has denied the suggestion that there was sign board showing the one way traffic and that the truck was not coming from the wrong side because the road on the other side was closed .
18 The respondent no. 3 i.e Insurance company has not led any evidence to prove the averments in the written statement that accident was caused due to rash and negligent act on the part of driver of car bearing no. DL 2C AC 7277.
19 Record of the criminal case has been proved as Ex. PW1/1 to Ex. PW1/4. The first information report Ex. PW1/4 has been registered against the offending vehicle bearing registration no. RJ 14 GA 5763 . The investigation by the police of the above FIR culminated in the form of Final Report U/s 173 Cr. PC Ex. PW1/11 (Suit No. S-36/09/08) wherein investigating agency has concluded that the accident was caused by the truck driver while driving the truck no. RJ 14G 5763 in a rash and negligent manner. In the statement of complainant Kamal Kumar Ex. PW1/12 on the basis of which case FIR was registered, it is clearly stated that the truck no. RJ 14 GA 5763 came in very high speed from the opposite direction and 11 hit against his car and the accident was caused because of rash and negligent driving of the truck driver. In the cross examination of PW1 he has again confirmed that the FIR was registered on his statement. Nothing was suggested to this witness that the statement Ex. PW1/12 was not correct. The statement Ex. PW1/12 on the basis of which FIR was registered is thus un-assailed and unchallenged.
20 The mechanical Inspection report of both the vehicles i.e Maruti Baleno bearing registration no. DL 2C AC 7277. and offending truck bearing no. RJ 14 GA 5763 is proved as Ex. PW1/17. The Mechanical Inspection Report of the car of the petitioner has established that the impact by the offending vehicle was forceful as a result the front portion of the Baleno Car was totally damaged 21 On mechanical inspection of truck bearing no. RJ 14 GA 5763 , the same was found to be mechanically correct, steering, clutch and break were working properly , head light of conductor side and front bumper and railing (Jali) in front of radiator was found dented. The respondent has not led any evidence to establish that the traffic at the time of accident was going one way and Jaipur Delhi side was closed . Nothing is mentioned in that regard in the charge sheet filed by the police after investigation. The petitioner in his affidavit Ex. P-1 has clearly deposed that the offending truck no. RJ 14 GA 5763 came at a very high speed in front of his car on wrong side i.e his own side and hit his car forcefully as a result of which his wife 12 died on the spot. This deposition of PW1 had been supported by the document of the criminal case proved on record by the petitioner and he has successfully withstood the test of the cross examination. Thus the registration of the criminal case and filing of the challan against the driver of the offending vehicle and the mechanical inspection report of the vehicles and deposition of petitioner has clearly established that the offending vehicle no. RJ 14 GA 5763 driven by respondent no. came on the wrong side and hit against the car driven by the petitioner and at that time the driver of the offending vehicle was driving it in a rash and negligent manner. 22 The Ld. Counsel for insurance company has argued that there was contributory negligence on the part of the driver of Maruti Baleno Car and the said fact is established because the petitioner has admitted in his cross examination that 'there was head on collision between the vehicles coming from the opposite directions . It is argued on behalf of Insurance company that when 'head on collision ' takes place between the vehicles coming from opposite direction , the contributory negligence on the part of the other vehicle than the offending vehicle is to be considered and liability of the offending vehicle and the Insurer has to be determined accordingly and the compensation needs to be decided accordingly. 23 Ld. Counsel for Insurance company has referred and relied upon the following cases.:
In Bijoy Kumar Duggar Vs Bidyadhar Dutta & ors.13
2006 Vol. II AD (SC) 601 it was held that :
" the MACT has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus , but when the vehicles had a head- on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. It was also observed by the MACT that the Maruti car being driven by the deceased met with an accident and before the accident the deceased driver had noticed (as stated by eye witness ) that a passenger bus coming from the opposite direction was coming in a zig-zag manner and its movement was not normal . If the bus was driven by the driver abnormally in a zig zag manner, it was but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction ."
24 In T.O Anthony Vs Karvarnan and Ors. (2008) 3 SCC 748 , it was held that:
The evidence shows that the appellant was not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the on coming bus. On thee facts and circumstances, the appellant was also held partly responsible for the accident and his responsibility was fixed at 25% and the responsibility of the driver was fixed at 75 %.
25 In Nasreenbanu and ors. Vs. New India Assurance Co. Ltd. &ors. 2009 ACJ 1906 High Court of Karnatka it was held as under :
Lorry driver after giving clearance to motorcyclist to overtake, suddenly applied brakes as a result both motorcyclist and pillion rider fell down and sustained fatal injuries -Eye Witness deposed that Lorry driver gave signal to motrocyclist to overtake but suddenly without any indication he came to his right side and motorcyclist 14 lost balance resulting in the accident - Driver of lorry did not step into the witness box -Tribunal held that driver of lorry was solely responsible for the accident - Appellate Court observed that if safe distance was maintained between the motor cycle and lorry, accident could have been avoided -Appellate court held that both lorry driver and motorcyclist did not adhere to minimum safety precautions and they were not careful enough to avoid the accident and apportioned the negligence between the lorry driver and motorcyclist at 75:25.
26 In Municipal Corp. of Greater Bombay Vs Laxman Ayyar 2004 ACJ 53 (SC) it was held that 'What Constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account . It is absence of care according to the circumstances. --- In case of contributory negligence, crucial question on which the liability depends would be whether either party could , by exercise of reasonable care , have avoided the consequences of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death , the fact that the persons suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other . ' 27 Ld. Counsel for the petitioner did not support his arguments by any citation and therefore has not rendered the desired 15 assistance to the court on the point of contributory negligence. Ld. Counsel for Insurance Company has also referred an overruled judgment of Hon'ble High Court of Guwhati cited as Usha Rajkhowa and others Vs Paramount Industries and others reported as 2009 ACJ 1295. I myself searched the relevant law on this point and found the most appropriate case of the Hon'ble Apex Court having similar facts and circumstances as the case in hand, reported as Usha Rajkhowa and Ors Vs. Paramount Industries & ors. 2009 ACJ 1314 wherein it is held :
' The eye witness has stated that he was traveling alongwith one Dhiren Hazarika in Maruti Car and that the offending truck no. NLA 241 was coming from the opposite direction in high speed and hit the car. Both Dhiren Hazarika , and one Jadhav Rajkhowa had died on the spot, while he escaped the death with certain grievous injuries . In his cross examination PW3 stated that :
"As to which vehicle was at fault I can't say clearly. It is not a fact that accident took place because of fault of Maruti Car.
He further stated that :
Maruti Car was going on its own side. Truck hit the Maruti Car. On the basis of this evidence, the Tribunal came to the finding that the amount of compensation was payable by United Insurance Company Limited , which was the insurer of the truck No. NLA-241 to the extent of 50% only, while the balance amount was to be borne by the owner himself ."
This award was challenged before Hon'ble High Court and the Hon'ble High Court has observed that the Tribunal had held that the accident took place due to 16 contributory negligence of the drivers of the truck and the Maruti car. The order of the Hon'ble High Court was challenged before the Hon'ble Apex Court and Hon'ble Apex Court was pleased to hold as under :
Para 8 : "In spite of our minute scrutiny of the award, we have not been able to even find a mention of words "contributory negligence" in the award passed by the Tribunal. There is, in fact, no finding given by the Tribunal as regards to the contributory negligence. The subject is discussed in paragraphs 10 and 11, where we do not find any specific finding to the effect that Maruti Car was guilty of the contributory negligence. It is only because the amount of compensation is restricted to the 50% of the assessed amount that we have to infer that the Tribunal had given a finding of contributory negligence. Even at the cost of repetition, we may say that the words "contributory negligence" nowhere appear in the award passed by the Tribunal. There is only one stray statement in the award, concerning the evidence of PW-3 Madhuriya Rajkhowa to the effect that he failed to state which of the vehicles was actually at fault. On this backdrop , when we see the impugned judgment, very interestingly, the judgment mentions in paragraph 9:
'In the present case at hand , the Learned Tribunal has held that the accident took place due to contributory negligence of the driver of the truck and the Maruti car.' We are afraid , such sentence is not to be found in the award of the Tribunal. We do not know, as to where has this finding been found by the High Court in the award. The 17 High Court then referred to the evidence of PW-3 and referred to the same sentence by PW-3 . It is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous.
Para 9: We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves have seen the evidence of PW3. In the Examination-in Chief , the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however he was quick to deny the suggestion thrown at him that accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the following words :
It is not a fact that accident took place because of fault of Maruti Car.
As if all this was not sufficient , he then in his Cross
-Examination at the instance of Oriental Insurance Co. Ltd. , asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now , the following factors are clear from this evidence.
1 The truck was coming in high speed.
2 It was the truck , which hit the car and not vice versa.
3 The Maruti Car was going on its own side.18
It seems that the Tribunal as well as , the High Court had chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact , the Tribunal, as well as , the High Court should have framed their own opinion instead of going by the judgment or as the case may be , inference by PW-3.
Under such circumstances, applying the doctrine of re ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal , as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti car and it was solely because of the negligence on the part of the truck that the accident took place."
In Parmod Kumar Rasikabhai Jhaveri Vs. Karmasey Kunvargi Tak and ors. AIR 2002 ACJ 1720 Hon'ble Apex court has held that :
Para 8 : The question of contributory negligence arises when there has been some act or omission on the claimant' s part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does 19 not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blame worthy in part as in " author of his own wrong".
28 In order to fasten contributory negligence of the petitioner i.e driver of the Maruti Car , it was necessary to establish that there was failure on his part to use reasonable care in the safety of himself, co- passengers and the car. His such act should have mutually contributed to the damage of car and accident having been caused due to head -on collision between the offending truck and his car . It is an established fact in the evidence of the petitioner that the offending truck came on the wrong direction and had suddenly come in front of his car . The truck was coming at high speed on wrong side and had hit his car as a result of which his wife died on the spot and his son succumbed to injuries while on the way to the hospital. The petitioner himself and his daughter has also sustained grievous hurt in the said accident . The petitioner in his cross examination has stated that there was no traffic signal showing closing of the road going to Delhi from Jaipur side . It is also established that car was going in right direction. No evidence was led by the respondents to prove the negligence on the part of the petitioner . Even the investigation carried out by the police does not mention that one side of the road i.e correct direction of the road was closed and for that reason truck was coming on the wrong side 20 of the road which was the correct side for the car driver. The evidence on record shows that the offending truck has hit the car with a forceful impact. The question of contributory negligence has been raised by the respondent no. 3 Insurance Company first time during the arguments. Nothing is mentioned in the written statement in that regard . The respondent no. 1 and 2 i.e driver and owner of the offending truck in their written statement have stated that no accident was caused by the offending truck. The Insurance company in the written statement has stated that the accident if any was occurred due to rash and negligent act on the part of the driver of the car bearing no. DL 2C AC 7277 . Nothing was suggested in the cross examination of the petitioner that the accident has occurred because of his contributory negligence. Nothing was suggested as to in what manner the petitioner i.e driver of the car was negligent. During arguments , the main stress of the Ld. Counsel for Insurance Company was that since it was head on collision , therefore circumstances shows that the driver of the car was also negligent . Had the negligence of the petitioner i.e driver of the car been put to him in his cross examination, he would have explained the said fact, but the Ld. Counsel has remained silent in that regard and has not put any question in cross examination of this witness. 29 I have also seen the site plan Ex. PW1/5 which is admitted by the petitioner having been prepared at his instance. The observation of the Investigating officer on the opposite side of the site plan 21 regarding one way traffic was not put to the witness in his cross examination and the witness has correctly stated that there was no sign board that the traffic on Jaipur Delhi side was closed and the whole traffic was going on the Delhi- Jaipur side of the road and that he had no knowledge in that regard. Even if, it is presumed that traffic at that time was one way and the whole traffic was going on Delhi- Jaipur side of the road, the distance of the place from where the offending vehicle was supposed to come on Delhi Jaipur side of the road is not far away from the spot of accident. The point 'A' on site plan Ex. PW1/5 is showing the place of accident . Therefore, the speed of offending truck at the time of accident should not have been high and the impact would not have been forceful in case the offending truck was not being driven in rash and negligent manner. In these given facts and circumstances, doctrine of res ispa loquitor is also applicable and the attending facts and circumstances shows that the accident took place because of the negligence on the part of the offending vehicle i.e truck bearing no. RJ 14 GA 5763. 30 I find support to my view in the judgment of Hon'ble Apex Court in Usha Rajkhowa and Ors. Vs Paramount Industries and Ors. referred SUPRA. Hence, I am convinced that there was no question of contributory negligence on the part of the petitioner i.e driver of the Maruti car and the accident had taken place solely because of the negligence on the part of the driver and because of his rash and negligent act , the wife and son of the petitioner had 22 died and petitioner Kamal and his daughter Kumari Himanshi had sustained grievous injuries.
31 The issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
Issue no. 2 (In suit no. 39/09/08-Old suit no. 58/07) Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ?
32 The appropriate method of calculating the compensation in fatal cases is multiplier method. In catena of decisions, the Hon'ble Supreme Court of India had held that in India the multiplier method is appropriate for calculation of compensation. It was so enunciated by their Lordship Wright in "Davies Vs. Powell Duffregn Associated Collieries Ltd" reported in 1942 AC 601, that the appropriate method to calculate compensation is the multiplier method. In the cases of 'General Manager, Kerela State Road Transport Corporation, Trivendram Vs Susamma Thomas (Mrs.) & Ors', (1994) 2 SCC 176; ( 2 ) 'Managing Director, TNSTC Ltd. Vs K.I. Bindu & Ors'. (2005) 8SCC 473; (3) 'Gobald Motor Service Ltd. & Anr Vs RMK Veluswami & Ors', AIR 1962 SC 1 and of late, in the case of 'Syed Basheer Ahamad & Ors. V Mohd Jameel and Anr'. in Civil Appeal No. 10 of 2009, decided by the Division Bench of the Hon'ble Supreme Court on 06/01/2009, also in the case of ' Smt. Sarla Verma & ors Vs. Delhi Transport Corporation in Civil Appeal No. 3483 of 23 2008 decided by the Division Bench of the Hon'ble Supreme Court on 15/04/09, the payment of compensation in lump-sum to legal representatives of deceased by multiplier method has been approved.
33 Starting point for calculating amount of compensation to be paid to dependents of deceased in a motor accident claim is the amount of monthly income which the deceased was earning; then there is an estimate of what was required for his personal and living expenses. The balance will generally be turned into lump sum by taking certain number of years of purchase. The choice of multiplier is ascertained by the age of the deceased or that of the claimant whichever is higher.
34 The petitioner has placed on record his ration card mark A and voter I- Card, mark B . As per his deposition, his minor daughter Kumari Himanshi and himself are only legal heirs of deceased Smt. Anju Himmatramka because his son Master Onkar also expired in the accident . The Ration Card mark A has established the identity of the petitioner and his family including deceased Anju . The Voter I Card issued by Election Commission of India is also placed on record in respect of deceased which are referred mark 'B' and 'C' and the age of the deceased on 1.1.2003 has been shown to be 29 years. The date of birth in Income Tax Return of the deceased as authenticated by the Income Tax officer Ex. PW1/2 is mentioned as 24 5.2.1973. Since it is an authenticated document by government official , therefore the age of the deceased is to be determined from the said date of birth i.e 5.2.1973 . The petitioner and his minor daughter (petitioner no. 2) are therefore only legal heir of the deceased. The petitioners are thus entitled to compensation under the following heads :
Loss of Dependency 35 PW1 Kamal Himmatramka in his affidavit Ex. P-1 has stated that age of his wife at the time of accident was 33 years and she was running a boutique and was doing other household trading and was earning Rs. 25,000/- per month approximately. . He has also placed on record the Income Tax Return of the deceased for the year 2004-
2005 , 2005-2006 , 2006-2007 and 2007-2008 as Ex. PW1/2 to Ex. PW1/5. In his cross examination by Ld. Counsel for Insurance company , he has admitted that he did not have any document to show that his wife was running a boutique . He has also admitted that there was no definite income per month from the brokerage by selling product of company. He further admitted that he has not placed on record cash book, ledger, bank pass book etc. in support of the income determined for his wife. He has also stated that there was no specific mention in his pleading about working of his wife or selling of product of the company and receiving brokerage from that work. He has also stated that there was no document in support of 25 her qualification to be 12 th pass as claimed in the petition. 36 The petitioner has examined PW2 , Chartered Accountant to establish that the Income Tax Return of the deceased was filled by him. PW2 in his cross examination has stated that he had filled up Income Tax Return on the basis of bank pass book and no book of account were maintained by the assessee. He has further admitted that in the pass book it was not mentioned that the amount was credited on account of commission. He has also admitted that Income Tax Return has to be filled up as per declaration of the assessee and declaration can be verbal also . As per Income Tax Act checking of the books of account is not required for filing of income tax return upto Rs. 1, 20,000/- per year .
37 PW2 has further stated that Income of the asessee (deceased)in Income Tax Return has been shown from Short Terms Capital Gain which was from Share Trading . Thus, there is no documentary proof regarding the earning of the deceased except that some TDS certificate showing to be amount of Commission and some documents collectively Ex. PW2/R1 as proof of said trading done by the assessee. There is no documentary evidence that the deceased was in the business of share trading for a long time . After going through the evidence of PW1 and PW2 and on the basis of preponderance of probability , it is not established to the satisfaction of the Court that deceased Anju was earning independently. There is no bar for a household lady to do Share Trading but one or two 26 act of share trading done in a year would not make a household lady to be an independently earning member of the family. But the facts remain that the deceased was household lady and providing household services to her family.
38 In Lata Wadhwa & Ors. Vs State of Bihar and Ors. AIR 2001 SC 3218, it was held that 'Considering the multifarious services rendered by the housewives for managing the entire family, even on modest estimation the value of the services rendered by her to house should be Rs. 3000/- per month and Rs. 36,000/- per annum . This would apply to all those housewives between the age group of 34 to 59 years and as such who were active in life. 39 As per document Ex. PW1/2 i.e Income Tax Return , the date of birth of deceased was 5.2.1973 . The accident has taken place on 06.9.2006 . Thus, on the date of accident , the deceased was of the age of more than 33 years (33 years 7months 1 day). The age of the deceased is accordingly taken to be 33 years plus as on the date of accident.
40 The date of the accident in the case of Lata Wadhwa's case (supra) was 03/03/89. The date of accident in the present case is 06/09/06. The accident in the present case accordingly took place after about 17 ½ years of the date of accident in the case of Lata Wadhwa(supra).
2741 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.
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 deceased, 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 17 ½ years from 03/03/89 .
Also in terms of law laid in the case of Lata Wadhwa & Ors (supra), no amount is to be deducted from the such estimated notional income of the deceased lady in respect of deduction for her personal and living expenses. Accordingly Rs. 6000/- per month is taken as the monthly loss of dependency of the petitioners.
MULTIPLIER In terms of the photocopy of Identity Card of Election Commission of India Mark B, the age of the petitioner Kamal Hiimatramka is shown to be 32 years as on 1.1.2003 As on the date of accident the age of the petitioner No.1, PW-1 was 35 years plus (35 years 8 months 6 days) 28 In terms of law laid in the case of New India Assurance Co. Limited Vs. Shanti Pathak & Ors, reported in III(2007)ACC 505(SC), the multiplier is to be adopted on the basis of age of deceased or that of claimant whichever is higher. 46 In terms of the law laid by the Apex Court in case of ' Smt. Sarla Verma & Ors (Supra), since the age of the husband of the deceased was 35 years plus, the multiplier of 15 is to be applied in this case. Accordingly the total loss of dependency would be Rs.10,80,000/- ( Rs. 6000X12x15).
COMPENSATION FOR LOSS OF CONSORTIUM 47 In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) the husband of the deceased, petitioner No.1 is entitled to Rs. 10,000/- as loss of consortium.
COMPENSTION FOR LOSS OF ESTATE 48 In terms of law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra), the claimants are entitled to sum of Rs. 10,000/- under the head of loss of estate.
COMPENSATION TOWARDS FUNERAL EXPENSES 49 In view of the law laid by the Apex Court in the case of Smt. Sarla Verma & Ors (Supra) , the claimants are entitled to Rs. 5,000/- under this head.
29COMPENSATION FOR LOVE AND AFFECTION.
50 No amount would suffice to compensate the loss of love and affection to petitioners. Yet, relying upon the pronouncements of the Hon'ble Mr. Justice J. R. Midha in case of ' Rajesh Tyagi & ors Vs. Jaibir Singh & Ors as FAO No. 842/2003, orders dated 08/05/09, the claimants, two in number, are entitled to sum of Rs. 10,000/- each i.e., totaling Rs. 20,000/- as loss of love and affection. 51 In view of the above discussion, the total compensation to which the petitioners are entitled to comes as under:-
! "
# $$$$$$$$$$$ % $$$$$$$$$$$ & ' $$$$$$$$$$$$ In view of the above discussions, Issue No.2 is decided in favour of the petitioners and against the respondents. Petitioners are, thus, entitled to Rs.10,75 000/- as compensation alongwith interest @ 7.5 % per annum from the date of filing of the petition till its realization from the respondents, payable by Insurer.
Relief 53 In view of the aforesaid discussions, it is hereby held that 30 petitioners are entitled to a sum of Rs. 10,75,000/- alongwith interest @ 7.5 % per annum, from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company, respondent No.3.
Apportionment 54 Petitioner no. 1 is the husband of the deceased and petitioner no. 2 is the minor daughter of the deceased. The petitioner has already re-married and a female child is born out of second wedlock. Therefore, in these given circumstances, apportionment of the compensation among both the claimants should be in 50 -50 ratio.
55 The 50% out of the share of the petitioner no. 1 i.e husband of the deceased will be kept in FDR in a Nationalized bank for a period of 5 years. The award amount of minor petitioner no. 2 (Kumari Himanshi)be invested in the shape of two FDR 's of equal amounts in a Nationalized Bank . First FDR will be entitled to be released on attaining the age of majority and the second FDR will be entitled to be released on attaining the age of 22 years. The FDR 's shall have no facility of loan or advance. Petitioner can withdraw the interest monthly. Minor petitioner no. 2 can withdraw interest through her guardian father /petitioner no. 1 . However, petitioners are at liberty to take steps for premature encashment in case of exigency , as per law laid, before this Tribunal. 31 ISSUE NO.2 (In suit no. 38/09/08-old suit no. 59/07) Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ?
56 PW1 Kamal Himmatramka in his affidavit Ex. P-1 has deposed that his son Master Onkar was student of 7th class and was studying in Hans Raj Model school , Punjabi Bagh and was a brilliant student ; he was so responsible child that he used to help his mother in her Boutique work for two hours a day and had he remained alive he would have become Engineer . The petitioner has placed on record certificates of roller skating championship, 2005 Ex. PW1/6 wherein deceased Onkar has stood second in Sub Junior championship hosted by Shah International School , New Delhi for the student of age group of 10-12 years. Similarly, the certificate of Completion of first level program by Misty Abacus Academy pvt. Ltd. is also placed on record as Ex. PW1/7. The age of the deceased Onkar in Saroj Hospital & Heart Institute MLC Ex. PW1/2 has also been mentioned as 12 years. Thus, on the basis of all these documentary proof , the age of the deceased Onkar is found to be more than 10 years and less than 12 years at the time of his death. There is no evidence on record to show that the wife of the petitioner and mother of the deceased was running a Boutique at her residence and as such there is no evidence that Master Onkar was helping her in 32 that business and therefore there is no evidence on record to show that he was earning any income at the time of his death. 57 The evidence on record shows that petitioner PW1- Kamal Himmatramka , father of the deceased child was of the age of 35 plus on the date of accident. The mother of the child has also expired in the said accident.
58 Relying upon the cases of (1) National Insurance Company Limited Vs. Farzana, MAC Appeal No. 13/2007, decided on 14/07/09; (2)Manju Devi Vs. Musafir Paswan, reported in VII(2005) SLT 257;(3) Sobhagya Devi Vs. Sukhvir Singh, reported in II (2006) ACC 1997; (4)Syam Narayan Vs. Kitty Tours & Travels, reported in 2006 ACJ 320;(5) R. K. Malik Vs. Kiran Pal, reported in II(2006) ACC 261 and (6) R. K. Malik Vs. Kiran Pal, reported in 2009(8) Scale 451 (Supreme Court); it was held by Hon'ble Mr.Justice J.R. Midha in the cases of (1)Jitender Kumar & Anr Vs. The Oriental Insurance Company Ltd & Anr, MAC Appeal No. 68/2009, decided on 31/07/09 and (2) Sri Ram & Anr. Vs. Surender Yadav & Ors, MAC Appeal No. 627/08, decided on 04/09/09 that the parents of the minor deceased are entitled for Rs.2,25,000/- towards pecuniary damages(as loss of dependency) following the Second Schedule of Motor Vehicles Act,1988(after taking notional income of non-earning minor deceased as Rs. 15,000/- per annum and applying the multiplier of
15); Rs. 75,000/- towards non- pecuniary damages (stated non-
pecuniary damages include such immeasurable elements as pain 33 and suffering and loss of amenity and enjoyment of life) and Rs. 75,000/- towards future prospects.
59 The deceased in the present case was a student of class 7th and whose meritorious Certificates Ex. PW1/6 and Ex. PW1/7 are on record. This case is also squarely covered by the ratio of the judgments of Hon'ble Mr. Justice J. R. Midha, cited above, which in the case of Jitender Kumar & Anr (supra) related to the death of road accident victim who was 3 years old child. In the case of Sri Ram & Anr(supra), the age of the claimant, father of the deceased minor, was 58 years at the time of accident. Therein the Tribunal had applied the multiplier of 8 which was enhanced to 15 by the Appellate Court.
60 In terms of above said law the petitioners /claimants i.e father and sister of deceased minor boy in this case are also accordingly entitled to Rs. 2,25,000/- as pecuniary damages (as loss of dependency) following the Second Schedule of the Motor Vehicles Act (after taking notional income of non earning minor deceased as Rs. 15000/- per annum and applying the multiplier of 15 , they are therefore entitled to Rs. 75000/- towards non-pecuniary damages and Rs. 75,000/- towards future prospects of the deceased child. The total compensation for which the petitioners/claimants are entitled comes to Rs. 3,75,000/- accordingly. Out of the same, interim award sum of Rs. 50,000/-has to be reduced . Balance payable compensation sum is Rs. 3,25,000/-
3461 In view of the above discussions, issue No.2 is decided in favour of the petitioners and against the respondents. Petitioners are thus, entitled to Rs. 3,25,000/-as compensation alongwith interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents, payable by Insurer.
RELIEF 62 In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs. 3,25,000/-, to be equally shared between them alongwith interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company/ respondent No.3. Apportionment 63 Since the petitioners are second class legal heir of the deceased boy i.e Master Onkar, ends of justice require that the apportionment of the compensation should be in 50-50 ratio and accordingly the share of the petitioner would be 50% each of the total compensation arrived. Out of the compensation sum awarded to this petitioner , the share of the petitioner no. 2 i.e minor daughter , sister of the deceased is to be kept in two FDR's of equal amounts for a period till she attain the age of majority. The 50% of the share of the petitioner no. 1 i.e father of the deceased will be kept in FDR for a period of 5 years. The FDR's will invested in a Nationalized bank. 35
Respondent no. 3 i.e National Insurance Co. Ltd. Is directed to deposit the amount within a period of 30 days.
ISSUE NO. 2 (In suit no. 36/09/08-old suit no. 60/07) Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ?
64 The petitioner Kamal in his affidavit Ex. P-1 has deposed that the offending vehicle i.e truck came at very high speed in front of his car on wrong side and hit his car on his side forcefully as a result of which he had received multiple injuries on his forehead , left cheek and on right shoulder and his collar bone was fractured and separated from each other on both hands. He has further deposed that he was admitted in BDM Hospital , Kothputli where he was given stitches on his left cheek and after getting required medical treatment he had received remaining treatment from Sir Ganga Ram Hospital , New Delhi and also remained confined to bed for a period of 3 months and has thus claimed Rs. 3,00,000/- as compensation for the injuries suffered by him . Let me now assess the compensation to which petitioner is entitled to under different heads:
Compensation for the expenses incurred on medical treatment
65 The petitioner has placed on record treatment record of Sir Ganga Ram Hospital is Ex. PW1/1 consisting of three pages , receipt of Sir Ganga Ram Hospital are Ex. PW1/4 and Ex. PW1/5 for Rs. 240 and Rs. 1850/- respectively dated 6.9.2006; receipt of medicines 36 from Surya medicos is Ex. PW1/6 for Rs. 952.60, receipt of X-Ray Ex. PW1/7 and Ex. PW1/8 dated 20.9.2006 and 18.12.2006 in the sum of Rs. 180 /- and Rs. 180 /- , receipt dated 9.10.2007 for Rs. 200 is Ex. PW1/9 . He has also proved certified copy of injury report dated 6.9.06 Ex. PW1/10 . In his cross examination , he has stated that remained admitted in Sir Ganga Ram Hospital on the date of sustaining injuries and was discharged on the next date . He had no other bill of Ganga Ram Hospital except the bill Ex. PW1/4 and Ex. PW1/5 . The casualty card of Sir Ganga Ram Hospital is Ex. PW1/1 dated 6.9.06 has shown fracture in collar bone. It is thus established that the petitioner has sustained grievous injuries on his body in the accident caused by the offending vehicle and has thus incurred expenses on his medical treatment. Therefore, the petitioner is entitled to a sum of Rs. 3602.60 as compensation under this head . Compensation for conveyance expenses and special diet 66 As per evidence on record vide Ex. P-1 supported by medical treatment, the petitioner has established that he has sustained injuries and got treatment for the same in Sir Ganga Ram Hospital . Though ,there is no cogent evidence on record for the money spent by the petitioner on conveyance and special diet, however in view of the nature of injuries received by the petitioner as enumerated by him in his evidence and his treatment papers placed on record, I am of the opinion that the petitioner must have spent some sum under this head . I therefore, assess the petitioner to be entitled for a sum 37 of Rs. 5000/- as compensation under this head. Compensation for loss of income 67 The petitioner in his affidavit Ex. P-1 has stated that because of the injuries sustained by him i.e fracture of the collar bone , he could not join his business for 3 months as he was earning Rs. 25,000/- per month. Therefore, he had suffered a loss of Rs. 75,000/- in his business. There is nothing in the cross examination of PW1 to the effect that he was not earning Rs. 25000/- per month from his business . His statement is also supported by Income Tax Return Ex. PW1/2 to Ex. PW1/3 wherein his gross income has been shown to Rs. 1,13,380/- and Rs. 2,53,681/- respectively for the year 2005-2006 and 2006-2007. Ld. Counsel for insurance company had argued that it has been admitted in the cross examination by PW2 that there was no gap shown in the cash book and ledger book so as to confirm the closure of the factory for the period of 2-3 months . Though petitioner is not able to establish that his factory remained closed for 3 months, but in the facts and circumstances, he himself suffered fracture of his collar bone and his wife and son expired in this accident, it is natural that he could not have attended business for a period of atleast 1 month. Therefore, in these circumstances , he has atleast suffered loss of income for a period of 1 month . The petitioner is therefore entitled to Rs. 25,000/- as compensation for loss of income.
38Compensation for pain and suffering and loss of amenities of life. 68 It has been established in the evidence of the petitioner that he has suffered a fracture of collar bone and was also hospitalized for 1 or 2 day . He has further deposed that his collar bone was not correctly joined and he was still having difficulty with the same. Keeping in the mind facts and circumstances of the case and the fact that the petitioner has sustained grievous injuries on his body , I am of the considered opinion that a sum of Rs. 25000/- as compensation for pain, suffering and loss of amenities of life will be sufficient to meet the ends of justice.
In view of above discussion, the total compensation to which the petitioner Kamal Himmatramka is entitled comes as under :-
1 Compensation for the expenses incurred on medical treatment Rs. 3602.60 2 Compensation for conveyance and special diet Rs. 5,000.00 3 Compensation for loss of income Rs. 25,000.00 4 Compensation for pain and suffering and for loss of amenities of life Rs. 25,000.00 ____________ Rs. 58602.60/-
____________ Rounded off to Rs. 58,600/-
____________ 69 In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner (Shri Kamal Himmatramka ) is thus entitled to a sum of Rs.58,600/- as 39 compensation along with interest @ 7.5% per annum from the date of filing of the petition till its realization from the respondents, payable by the Insurer i.e respondent no. 3.
ISSUE NO. 2 (In suit no. 37/09/08- old suit no. 61/07) Whether the petitioner is entitled to any compensation ? If so, to what amount and from whom ?
70 In view of the finding given on issue no. 1 to the effect that the petitioner Kumari Himanshi has sustained injuries in the accident due to the negligence of respondent no. 1 , the petitioner is entitled to receive the compensation under Motor Vehicles Act under the following heads :
Compensation for expenses incurred on medical treatment
71 The father of the petitioner has deposed on behalf of his minor daugter Kumari Himanshi by filing his affidavit Ex. P-1 wherein it is stated that she has suffered fracture in her both legs and injuries in her spinal cord besides other injuries; she was taken to BDM hospital from where she was brought to Sir Ganga Ram Hospital , New Delhi where she was operated upon and her right leg was still not working properly. It is further stated that her medical report is Ex. PW1/1 consisting of 23 pages and Ex. PW1/2 consisting of 11 pages ; certified copy of MLC is Ex. PW1/4 and cash memo is Ex. PW1/5 to Ex. PW1/20. In his cross examination by Ld. Counsel for 40 Insurance Company , PW1 - Kamal Himmatramka has stated that in the year 2006 his daughter Himanshi was aged about 8 years as she was born in 1998 and was studying in IVth class ; she was advised bed rest for 4 months and therefore she could not study during that period , payment of bill is Ex. PW1/1 in petition no. 37/09/08 (the present petition) was done by him in cash ; he did not have any document to show that he had paid Rs. 200/- regularly to the physiotherapist. The discharge slip of petitioner Himanshi has been placed on record and has been inadvertently exhibited as Ex. PW1/1 . The discharge slip is showing the date of admission 6.9.2006 and date of discharge 11.9.2006 . She is shown to have been admitted with the alleged history of road accident on 6.9.2006 . Her X-Ray showed Fracture Shaft Femur upper 1/3 and commuted supracondylar fracture Rt. Femur. Patient was started on IV fluids nebulization and received 1 unit of packed cells and injectable antibiotics. Orthopaedics reference of the child was done and orthopaedicians did a open reduction Internal Fixation on it side and closed reduction with above knee POP cast applied. MRI spine was normal. Patient remained hemodynamically stable. CT Head has been normal.
72 The certificate issued by Orthopaedic Surgeon Dr. Attique Vasdev of Sir Ganga Ram Hospital is also placed on record wherein it is stated that she was having fracture of the shaft of lower end of right femur and fracture shaft of left femur ; she has undergone a 41 surgery of left femur on 8.9.2006 . The right side was managed conservatively. She has been advised rest at home for 3 months from the date of surgery.
73 Thus, from the medical record of the petitioner it stands established that she has suffered grievous injuries in the accident and has remained on bed rest for a period of about 3 months. The medical bills Ex. PW1/5 and subsequent bills placed on record are for a total sum of Rs. 1,09,004.00 74 There is nothing in the cross examination of the PW1 that the medical bills regarding treatment of petitioner placed on record were not correct and that the amount mentioned in those bills was not spent on her treatment. The petitioner is therefore, entitled to compensation of Rs. 1,09,004/- towards medicines and medical treatment.
Compensation for conveyance expenses 75 The petitioner remained admitted in Sir Ganga Ram Hospital from 6.9.2006 to 11.9.2006 where she was operated upon . She was advised bed rest but had to go to hospital for subsequent treatment. Though, there is no cogent evidence for expenses incurred on conveyance, but considering the period of hospitalization , her treatment and visit to hospital , I am of the opinion that petitioner Kumari Himanshi must have spent some sum under this head . The petitioner is accordingly entitled for a sum of Rs. 15000/- under this 42 head.
Compensation for Special diet 76 Considering the nature of injuries suffered by petitioner , her period of hospitalization and treatment received by her. Though, there is no cogent evidence on record about the money spent on special diet, I am of the opinion that petitioner must have spent some sum under this head. I therefore , assess the petitioner to be entitled for a sum of Rs. 20,000/- under this head. Compensation for loss of education on account of absence from school 77 It is established by evidence on record that because of the injuries sustained by petitioner she was advised bed reset for a period of 3 months and considering the nature of injuries sustained by her she would not have been able to go and attend her school for a period of 3 months. At the time of accident she was student of 4th class , therefore she has certainly suffered loss of education due to injury suffered by her. I am of the opinion that petitioner must be awarded some compensation on that account . The petitioner is accordingly held to be entitled for a sum of Rs. 30,000/- under this head .
Compensation for pain and suffering 78 The petitioner has suffered fracture on right leg femur and left 43 leg femur. She was operated upon and was hospitalized and remained bed ridden for a period of 3 months . It is settled law that no compensation would be adequate for physical discomfort, mental pain and suffering . It is thus exactly difficult to compensate the injured in terms of pain and suffering in the present case . Keeping in mind, the present case, I am of the opinion that a sum of Rs. 30,000/- as compensation for pain and suffering will be sufficient to meet the ends of justice.
Compensation for Loss of Amenities of Life 79 The petitioner could not have carried out her pursuits of life for a period of 3 months. Due to injury she could not have enjoyed her life such as playing with the children of her age . Due to the hardships and sufferings she would have been deprived of love and care . Therefore, the petitioner is entitled to be awarded for a sum of Rs. 10,000/- under this head.
In view of above discussion, the total compensation to which the petitioner Kumari Himanshi is entitled comes as under :-
1 Compensation for the expenses incurred on medical treatment Rs. 1,09,004.00 2 Compensation for conveyance expenses Rs. 15,000.00 3 Compensation for special diet Rs. 20,000.00 3 Compensation for loss of education Rs. 30,000.00 4 Compensation for pain and suffering Rs. 30,000.00 5 Compensation for loss of amenities of life Rs. 10,000.00 ______________ Rs. 2,14,004.00 _______________ Rounded off to Rs. 2,14,000.00 ______________ 44
80 In view of the above discussion, issue no. 2 is decided in favour of the petitioner and against the respondents. The petitioner (Kumari Himanshi) is thus entitled to a sum of Rs. 2,14,000/- as compensation along with interest @ 7.5% per annum from the dat+e of filing of the petition till its realization from the respondents, payable by the Insurer i.e respondent no. 3.
RELIEF ( In suit no. 39/09/08- old suit no. 58/07) 81 In view of the aforesaid discussions, it is hereby held that petitioners are entitled to a sum of Rs. 10,75,000/- along with interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company/Respondent no. 3.
RELIEF ( In suit no. 38/09/08- old suit no. 59/07) 82 In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs 3,25,000/- to be equally shared between them with interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company/Respondent no. 3. RELIEF ( In suit no. 36/09/08- old suit no. 60/07) 83 In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs 58,600/- along with interest @ 7.5% per annum from the date of filing of the present petition till its 45 realization from the respondents, payable by the Insurance Company/Respondent no. 3.
RELIEF ( In suit no. 37/09/08- old suit no. 61/07) 84 In view of the aforesaid discussions, it is hereby held that petitioner is entitled to a sum of Rs 2,14,000/- along with interest @ 7.5% per annum from the date of filing of the present petition till its realization from the respondents, payable by the Insurance Company/Respondent no. 3.
Respondent no. 3 i.e National Insurance Co. Ltd. is directed to deposit the cheques in the names of the petitioners within 30 days .
File be consigned to record room.
Announced in the open court on this 19nd day of December 2009 (RAJ KUMAR CHAUHAN) ADDITIONAL SESSIONS JUDGE (WEST) Delhi