Delhi District Court
Sh. Ram Naresh vs ) Sh. Sunny Sharma S/O Sh. Ashwani Sharma ... on 8 May, 2012
1
IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT
CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
(MACT No. 1096/10)
Sh. Ram Naresh
S/o Sh. Satya Narain Sharma
R/o. 3736, Gali Barna
Sadar Bazar, Delhi. ------- Petitioner
Versus
1) Sh. Sunny Sharma S/o Sh. Ashwani Sharma (Driver)
R/o BC-72/D, Shalimar Bagh, Delhi.
2) Sh. Chetan Sharma S/o Sh. Ashwani Sharma (Owner)
R/o 66-D, BC Block, Gate No.3, Near Kela Godown
Shalimar Bagh, Delhi.
3) Iffco-Tokio General Insurance Co. Ltd. (Insurance Co.)
FAI Building, 10, Shaheed Jeet Singh Marg,
Qutub Institutional Area, Delhi ------Respondents
Date of institution----09.03.2010
Date of decision------08.05.2012
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
********************************
JUDGMENT:-
Petitioner Ram Naresh aged about 61 years through the present petition claimed compensation of Rs. 5,00,000/- alongwith interest @ 18% p.a. on the ground that on 09.02.2010 at about 7.30 p.m., he was going on foot and was proceeding towards Bus stand from Wazirpur Industrial Area, A-Block, Red Light, Near Police Picket, WPIA, Ashok Vihar, Delhi and was crossing the road, then a motorcycle no. DL-4S-BJ-1800, driven by its driver at a very high speed, rashly, negligently and without 2 caring for the rules of traffic, came from Ashok Vihar Petrol Pump side and hit the petitioner. As a result of forceful impact the petitioner was fell down on the road and sustained serious/grievous injuries all over the body i.e. fracture right leg, serious injuries on right hand, serious injuries on right hip joint, serious head injuries, abrasions and blunt injuries on all over the body and other injuries as per medical record. It is further stated that the accident took place due to rash and negligent driving on the part of driver of offending vehicle. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No. 32/2010 in police station Ashok Vihar, Delhi.
Petitioner alleged that at the time of accident he was self employed and was running a utensils shop and was earning Rs. 25,000/- per month. He claimed compensation from the respondents being driver, owner and insurance company of offending vehicle under various pecuniary and non pecuniary heads.
Respondent no. 1 & 2 filed joint written statement and totally denied happening of an accident with their vehicle. It is stated that the alleged accident was not caused due to the fault or driving of respondent no. 1. It is further stated that the respondent no. 1 was driving the alleged offending vehicle at a very slow speed but the petitioner in hurry rushed to cross the road without caring for the other vehicles plying on the road and himself rammed into the alleged offending vehicle and no accident was caused by the driving of the respondent no. 1 and the petitioner had falsely implicated him with some ulterior motive to extort motive. Respondent no. 3 insurance company in its written statement admitted existence of insurance policy in respect of offending vehicle but tried to avoid its liability on various technical grounds. It is stated that the respondent no. 1 was driving the alleged offending vehicle without holding a driving licence.
3Respondent no. 1 was driving the vehicle no. DL-4S-BJ-1800 in violation of section 3, 4 of the Motor Vehicle Act, 1988 without holding a valid/effective licence to drive the said vehicle at the time of alleged accident. Respondent no. 2 has intentionally violated the terms & conditions of the insurance policy and allowed his vehicle to be driven by a person who was not holding a valid driving licence and this is in complete violation of section 5 of the Act. Hence the respondent no. 3 insurance company is not liable to any compensation to the petitioner.
On the basis of pleadings of the parties, following issues were framed on 05.10.2010 by my ld. Predecessor:
1). Whether the petitioner suffered injuries on 09.02.2010 at about 7.30 p.m. at T-point, Red Light, near police picket, WPIA Chowk, Ashok Vihar, within the jurisdiction of police station Ashok Vihar, due to the accident caused by motorcycle bearing No. DL-4S-BJ-1800 driven by respondent no.1 in a rash and negligent manner? OPP
2). Whether the petitioner is entitled for any compensation, if so from whom and to what an extent? OPP
3). Relief.
The petitioner in support of his case examined himself as PW-1. Respondent no.1 examined himself as R1W1 and respondent no. 2 as R2W1 and respondent no. 3 insurance company examined Sh. Pradeep Sharma, Business Development Manager as R3W1. Petitioner In his affidavit in evidence Ex.PW1/A reiterated the facts as stated in the petition. He further stated that he sustained fracture on his right leg, serious injuries on right hand, right hip joint and serious head injuries besides other injuries on various parts of his body. He was removed to BJRM Hospital from 4 the spot of accident where he was given first aid by the doctors of said hospital. He remain admitted in Parnami Hospital, Azadpur, Delhi upto 15.02.2010. During this period of hospitalization, an operation of his right femur was conducted and steel rod and steel plates were inserted in it. The said steel rod and steel plates are still lying in his right femur. He further stated that due to the injuries sustained in the said accident, he has become permanently crippled and is no more able to run, to squat, to climb stairs or even to walk properly. He is no more able to lead his life as a normal human being and finds difficult even to perform his daily personal routine work and is unable to enjoy even the small amenities of life. He had filed income tax returns for the assessment year 2009-10 which was his income upto March, 2009. He had also filed his return for the assessment year 2010-11 in respect of his income upto March, 2010. After the accident, he was constrained to close his shop and he is not having any other person who may look after his shop. He proved the medical treatment bills collectively Ex.PW1/1 (running into 30 sheets), medical treatment documents and prescriptions collectively Ex.PW1/2 (running into 15 sheets), original X-ray plates as Ex.PW1/3 (9 plates), original certificate dated 03.12.2010 issued by Dr. M.L. Parnami as Ex.PW1/4, certificate dated 06.12.2010 issued by National Industries as Ex.PW1/5, copy of his income tax returns for the assessment year 2009-10 and 2010-11 as Ex.PW1/6 & PW-1/7 respectively, copy of sales tax number as Ex.PW1/8 and copy of Form-B from Registrar of Firms as Ex.PW1/9. Nothing incriminating has come out in the cross examination of PW-1. He has also proved the computation of taxable income and balance sheet for the assessment year 2009-10 and 2010-11 as Ex.PW1/R-3A and Ex.PW1/R-3B. He also proved the copy of permanent disability certificate issued by the Medical Board of Hindu Rao Hospital as Ex.PW1/R-3C. He has already filed his income tax returns on record.
5Respondent no.1 examined himself as R1W1, who proved his affidavit in evidence as Ex.R1W1/A and reiterated the facts as stated in his written statement. He stated that he was having valid driving licence at the time of alleged accident. He proved the copy of his D/L as Ex.R1W1/1. In the cross examination, R1W1 denied the suggestion that the accident take place due to his rash and negligent driving.
Respondent no. 2 examined himself as R2W1, who proved his affidavit in evidence as Ex.R2W1/A and corroborated the version as stated by respondent no.1. He proved the copy of insurance cover note as Ex.R2W1/1 and copy of R.C. of vehicle as Ex.R2W1/2.
R3W1 Sh. Pradeep Sharma, Business Development Manager stated in his evidence that as per the investigation done by the insurance company, the Hologram on the cover note was absent. He further stated that the cover note in question is fake and the insurance company has made a complaint in this regard to the SHO, Police Station Barakhambha Road, Cannaught Place, New Delhi on 30.11.2011. He proved the copy of the said complaint as collectively Ex.R3W1/A (running into 3 sheets) and the copy of fake cover note as Ex.R3W1/B. Nothing incriminating has come out in the cross examination of R3W1. He denied the suggestion that the cover note No. 47019 i.e. document Ex.R3W1/B was issued by their office through their authorized agent and the premium of Rs. 834/- was duly received by their company. Till date no FIR is registered on the basis of complaint Ex.R3W1/A. He further denied the suggestion that no Hologram is missing from the cover note in question Ex.R3W1/B as deposed by him. He denied the suggestion that the Insurance company is taking a false defence to avoid their liability and the complaint Ex.R3W1/A is a false complaint which was lodged to create a false defence. In the cross examination conducted by counsel for respondent no. 1 & 2, R3W1 further 6 stated that no person with the name of Pankaj Kumar was working in their office as on 12.01.2010. He is not aware whether any complaint is pending before the Consumer Forum in respect of the cover note Ex.R3W1/B. He denied the suggestion that on line request was submitted with the insurance company by the insured for getting his vehicle no. DL-4S-BJ-1800 insured and in lieu of the said request, one representative of their office namely Sh. Pankaj Kumar met the insured and issued cover note Ex.R3W1/B after receiving the premium. He further denied the suggestion that the police complaint Ex.R3W1/A is false.
I have heard counsel for the parties and have perused the entire record. My decision on the above mentioned issues is as under:
Issue No. 1:
The principles to be followed in the case of motor accident claim have been laid down by the Hon'ble High Court of Guwahati in case cited as Renu Bala Paul and Ors. vs. Bani Chakraborty and Ors. 1999 ACJ 634 wherein it is held that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society.
N.K.V. Bros (P) Ltd. vs. M. Karumai Ammal & Ors. (1980) 7 3 SCC 475 Mr. Justice V.R. Krishna Iyer and Mr. Justice D.A. Desai of Division Bench of Hon'ble Supreme Court has observed as under:-
"In Road accidents are one of the top killers in our country, especially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour".
Petitioner PW-1 in his affidavit in evidence disclosed how and in which manner the accident took place and entirely blamed driver of offending motorcycle in causing the accident in question rashly and negligently and hit him. Nothing material has been put regarding the manner of accident in the cross examination of PW-1. Version of the petitioner regarding accident has remained unrebutted and unchallenged and I find no ground to disbelieve him in this regard. There is nothing on record to point out that there was any negligence on the part of the petitioner. Investigating officer of the criminal case after investigation found that the accident took place due to rash and negligent driving of the offending motorcycle by respondent no. 1. Copy of FIR is on record which confirms the deposition of PW-1. Respondents no. 1 and 2 did not cross examine the petitioner effectively which draws an adverse inference against them and leads to the conclusion that version of the petitioner regarding the manner of accident is correct. Though respondent no. 1 & 2 8 examined themselves, but it is not their case that they had made any complaint to any authority against the alleged false implication of respondent no. 1 in criminal case or there was any enmity with the petitioner or IO which facilitated them to involve respondent no. 1 in the false criminal case. I could not find from the cross examination of PW-1 which point out that he was an instrumental or facilitator in causing the accident so possibility of existence of any contributory negligence is also ruled out. Hence it exonerates negligence of the petitioner. The statement of PW-1 regarding the manner of accident is unimpeachable and trustworthy. Accordingly, it is held that the accident had taken place with the offending motorcycle no. DL-4S-BJ-1800 being driven by respondent no. 1 in rash and negligent manner. In view of the above discussions, this issue is decided in favour of petitioner and against the respondents.
Issue No. 2:
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has observed as under:
"The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term "compensation" used in section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible 9 technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of the compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited MANU/SC/0146/1995: (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) - All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance, (ii) loss of earning of profit up to the date of trial, (iii) other material loss. So for non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e, on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life".
In the same case, the court further observed:
10"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards".
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka MANU/SC/0803/2009: (2009)6 SCC 1, the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs. 15 lakhs to Rs. 1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
"At the same time we often find that a person injured in an accident leaves his family in greater distress vis-...-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
In Reshma Kumari v. Madan Mohan Manu/SC/1303/2009:
(2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the Judgment are extracted below:
The compensation which is required to be determined must be 11 just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
In Arvind Kumar Mishra v. New India Assurance Co.
Limited Manu/SC/0777/2010: (2010) 10 SCC 254, the Court considered the plea for enhancement of compensation made by the Appellant, who was a student of final year of engineering and had suffered 70% disablement in a motor accident. After noticing factual matrix of the case, the Court observed:
"We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as ho was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered".
In Raj Kumar V. Ajay Kumar Manu/SC/1018/2010: (2011) 1 SCC 343, the court considered some of the precedents and held:
"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 for 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, 12 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 hie inability to earn as much as he used to earn or could have earned".
In our view, the principles laid down in Arvind Kumar Mishra vs. New India Assurance Company Ltd. (supra) and Raj Kumar vs. Ajay Kumar (supra) must be followed by all the Tribunals and the High Court in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident".
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages) I) Expenses relating to treatment, hospitalization, medicines, transportation, 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.
13
Non Pecuniary damages (General damages)
iv) Damages for 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), Iii) (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.
We shall now consider whether the compensation awarded to the petitioner is just and reasonable or he is entitled to enhanced compensation under any of the following heads:
i) Loss of earning and other gains due to the amputation of leg.
ii) Loss of future earnings on account of permanent disability.
iii)Future medical expenses.
iv)Compensation for pain, suffering and trauma caused due to the amputation of leg.
v) Loss of amenities including loss of the prospects of marriage.
vi)Loss of expectation of life.
Hon'ble Supreme Court in Govind Yadav vs. The New India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 has further observed as under:
"In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by 14 a victim, fresh award could be passed. However, for such medical treatment, the court has to arrive at a reasonable estimate on the basis of the evidence brought on record."
"After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs. 2,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses."
"The compensation awarded by the Tribunal for pain, suffering and trauma caused due to the amputation of leg was meager. It is not in dispute that the appellant had remained in the hospital for a period of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the Appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met b awarding him a sum of Rs. 1,50,000/- in lieu of pain, suffering and trauma caused due to the amputation of leg."
"The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of life with one artificial leg.15
The Appellant can be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life. "
Pecuniary damages (Special damages):
Petitioner stated that he sustained fracture on his right leg, serious injuries on right hand, right hip joint and serious head injuries besides other injuries on various parts of his body. He was removed to BJRM Hospital and thereafter his family members had taken him to Parnami Hospital, Azadpur, Delhi, where he remain admitted upto 15.02.2010. During this period of hospitalization, an operation of his right femur was conducted and steel rod and steel plates were inserted in it. The said steel rod and steel plates are still lying in his right femur. He visited number of times in the hospital for routine check up and taking medicines. His treatment continued for a period of about 6 months. He further stated that due to the injuries sustained in the said accident, he has become permanently crippled and is no more able to run, to squat, to climb stairs or even to walk properly. He is no more able to lead his life as a normal human being and finds difficult even to perform his daily personal routine work and is unable to enjoy even the small amenities of life. His treatment is still continuing as he feel regular and constant pain due to the injuries sustained in the accident. He has duly proved the medical treatment bills collectively Ex.PW1/1 (running into 30 sheets), medical treatment documents and prescriptions collectively Ex.PW1/2 (running into 15 sheets), original X-ray plates as Ex.PW1/3 (9 plates), original certificate dated 03.12.2010 issued by Dr. M.L. Parnami as Ex.PW1/4, certificate dated 06.12.2010 issued by National Industries as Ex.PW1/5, copy of his income tax returns for the assessment year 2009-10 and 2010-11 as Ex.PW1/6 & 16 PW-1/7 respectively, copy of sales tax number as Ex.PW1/8 and copy of Form-B from Registrar of Firms as Ex.PW1/9.
As per the case of injured/petitioner, he has suffered fracture on his right leg, serious injuries on right hand, right hip joint and serious head injuries besides other injuries on various parts of his body. It is stated that due to the injuries sustained in the said accident, the petitioner and is no more able to run, to squat, to climb stairs or even to walk properly. He is no more able to lead his life as a normal human being and finds difficult even to perform his daily personal routine work and is unable to enjoy even the small amenities of life and in that very nature of the things the functional disability is 100% more than 35% physical disability. Counsel for the petitioner has cited judgment passed by Hon'ble Delhi High Court titled as Mohd. Firoz Vs. Roshan Lal, App 67/2007 decided on 1.6.2011 and argued that the disability is to be taken as 100 per cent.
Petitioner was engaged in his business of utensils. He further stated that his shop was closed after his accident and the same is lying closed till date as he was the only person to look after his business. He has already filed his income tax returns on record. Annual income of petitioner as per last income tax return for the financial period ending on 31.03.2010 was Rs. 2,60,000/- (i.e. Rs. 21,666.66 paisa per month). In absence of any evidence, I deem it proper to treat roughly monthly income of the petitioner on the date of accident in round figure at Rs. 21,667/- per month. Accordingly this estimate of income has to be taken into consideration while assessing loss of earning capacity occurred due to permanent disability.
Petitioner might have suffered functional disability to an extent of 35% in relation to particular limb due to accident but his earning 17 capacity cannot be treated as reduced in such extent in comparison to whole body. This court is concerned with the effect of the permanent disability on the earning capacity of the injured and has to find out the effect of such disablement of the limb on the functioning of the entire body. However, I take the disability to 70% functional disability as per the judgment of Hon'ble Supreme Court reported in 2012 STPL (Web) CC Cases 12 SC for determination of compensation in respect of loss of future earning capacity in view of the facts of the case.
Petitioner in the petition described his age as 61 years at the time of accident. Accident took place on 09.02.2010. Hence after treating the age of the petitioner as 61 years, in view of the decision of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, multiplier of 7 has to be applied to count loss of earning capacity.
Medical record point out that petitioner was removed to BJRM Hospital and thereafter his family members had taken him to Parnami Hospital, Azadpur, Delhi, where he remain admitted upto 15.02.2010. He thereafter took treatment as out door patient. Petitioner has placed on record certain receipts and bills Ex.PW1/1 & Ex.PW1/10 which show that he had incurred expenses of Rs. 40,964/- upon hospital admission and medicines purchased from the market. No dispute regarding the correctness and genuineness of these bills is raised in the cross examination of petitioner so the amount of these medical bills at Rs. 40,964/- is liable to be paid to the petitioner.
Petitioner alleged that at the time of accident he was self employed and was running a utensils shop and was earning Rs. 25,000/- per month but he has not produced any witness in this regard. After the accident, he was constrained to close his shop and he is not having any other person who may look after his shop. He has suffered a heavy income 18 loss due to the injuries sustained in the accident. He has proved the computation of taxable income and balance sheet for the assessment year 2009-10 and 2010-11 as Ex.PW1/R-3A and Ex.PW1/R-3B. As per the balance sheet for the year 2010-11 Ex.PW1/R-3B, the net business income of the petitioner is Rs. 2,60,000/-. In such situation, I am of the view that petitioner is required to be reimbursed the amount towards loss of income for six months only at Rs. 1,30,000/-.
The permanent disability is treated at par with the death in order to calculate the amount of compensation in accordance with the extent of disability qua whole body. Petitioner was running his own business and was only a self employed person so while relying upon the decision of Supreme Court given in Sarla Verma vs. DTC 2009 ACJ 1298, no future prospectus has to be allowed to petitioner as he was above the age of 61 years at the time of accident.
As no deduction from income has to be taken towards personal expenses in case of injury as per decision of Delhi High Court in Bimla vs. Gopal MAC.APP no. 1028/2006 decided on 22-3-2010 so the total loss of future income or earning capacity comes to Rs. 12,74,000/- paisa as per the formula (Rs. 2,60,000 x 7 x 70%). Accordingly petitioner is granted loss of future income at Rs. 12,74,000/-.
PW-1 in his evidence stated that the doctors have advised him that the plates/rods affixed on his right femur will be removed after a period of two years and at that time he will have to incur a sum of Rs. 50,000/- towards medical treatment, special diet and conveyance. PW-1 during his examination proved the original certificate dated 03.12.2010 issued by Dr. M.L. Parnami as Ex.PW1/4 as per which the petitioner required removal of implant which will cost him around Rs. 15,000/-. In the cross 19 examination of this witness, there is no dispute about this cost nor any suggestion is given that petitioner does not require any future treatment. Judicial notice can be taken of the fact that due to such type of injuries and disability as is suffered by the petitioner, petitioner now cannot walk properly due to disability in his right leg and cannot now run or climb the stairs easily. Accordingly petitioner is entitled to sum of Rs. 70,000/- towards future medical expenses.
Petitioner in his evidence stated that he incurred a sum of Rs. 20,000/- on his conveyance and a sum of Rs. 20,000/- towards special diet. He stated that he was taken to Parnami Hospital from BJRM Hospital on ambulance and on two subsequent occasion ambulance was engaged for taking him to his house from Parnami Hospital and again he was taken on ambulance from house to Parnami Hospital on ambulance. He further stated that he spent Rs. 1,000/- per visit on the said ambulance but the owner of the ambulance had not given him any receipt for the same. Medical record shows that petitioner had visited number of times to hospital as OPD patient and remain admitted in Parmani Hospital 09.02.2010 to 15.02.2010 i.e. approximately for 07 days and thereafter his treatment continued, though no proof of spending upon any conveyance is brought on record. Injured must have spent some amount on extensive visits to the hospitals during that period. In case of sickness and serious injury, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Hence in absence of any evidence and documentary evidence, I am of the view that maximum petitioner can be paid Rs. 20,000/- towards special diet and Rs. 20,000/- towards conveyance charges.
Non-pecuniary damages (General damages):
Hon'ble Supreme Court in case Govind Yadav vs. The New 20 India Insurance Company Limited, Civil Appeal No. 9014 of 2011 decided on 01.11.2011 held that, it is not possible for suffering and trauma caused due to the shortening of leg was meager. It is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is shortened as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the Tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation. Admittedly, at the time of accident, the petitioner was of the age of 61 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, in my considered view following the above said judgment, I award a sum of Rs. 1,00,000/- in lieu of pain, suffering and trauma caused due to the shortening of right leg as per the judgment of Govind Yadav.
It can only be a matter of imagination as to how the injured will have to live for the rest of life with one short leg. The injured can be expected to live for at least 70 years. The petitioner stated in his evidence that due to the injuries sustained in the said accident, he has become permanently crippled and is no more able to run, to squat, to climb stairs or even to walk properly. He is no more able to lead his life as a normal human being and finds difficult even to perform his daily personal routine work and is unable to enjoy even the small amenities of life. Hence, I award him a sum of Rs. 1,50,000/- for the loss of amenities, loss of enjoyment of life and shortening of life as per the judgment of Govind Yadav.
R3W1 Sh. Pradeep Sharma, Business Development Manager in his evidence stated that the cover note in question is fake and the insurance company has made a complaint in this regard to the SHO, Police Station Barakhambha Road, Cannaught Place, New Delhi on 30.11.2011 21 and he proved the copy of the said complaint as collectively Ex.R3W1/A (running into 3 sheets) and the copy of fake cover note as Ex.R3W1/B. In the cross examination conducted by counsel for petitioner, he stated that they have not filed any complaint to any authority in respect of the false cover note as stated in his evidence prior to 30.11.2011. He has not brought any record to show the serial number of the cover note which were being issued in the month of January, 2010 from their office. He has no document to show that their agent codes are in 8 digits and not in 7 digits. He further stated that till date no FIR is registered on the basis of complaint Ex.R3W1/A. During cross examination conducted by counsel for respondent no. 1 & 2, R3W1 stated that no person with the name of Pankaj Kumar was working in their office as on 12.01.2010. He is not aware whether any complaint is pending before the Consumer Forum in respect of the cover note Ex.R3W1/B. There is no practice of receiving any on-line request from the prospective customer for issuance of the cover note. He denied the suggestion that on line request was submitted with the insurance company by the insured for getting his vehicle no. DL-4S-BJ-1800 insured and in lieu of the said request, one representative of their office namely Sh. Pankaj Kumar met the insured and issued cover note Ex.R3W1/B after receiving the premium. He further denied the suggestion that the police complaint Ex.R3W1/A is false. However, no notice was given by the insurance company to the owner or to the RTO concerned regarding fake cover noted. The complaint was made by the insurance company to the SHO, Police Station Barakhambha Road, Cannaught Place, New Delhi on 30.11.2011 but they have not filed any complaint to any authority in respect of the false cover note as stated in his evidence, prior to 30.11.2011. No charge sheet filed against the owner regarding fake cover note and no conviction was there on record on the basis of complaint till date. Hence insurance company is liable to pay whole compensation to the petitioner.22
Respondent no. 3 insurance company could not bring on record any other evidence to point out that it is not liable to pay compensation amount as assessed by the court or any term or condition of the insurance policy was breached by the insured or it has any limited liability. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes entitled to pay entire compensation amount to the petitioner.
In view of the above discussions this issue is decided in favour of petitioner and against the respondents by holding that he is entitled to get the following compensation from the respondent No. 3:-
Pecuniary damages (Special damages):
1. Loss of income -----------------------------------------Rs. 1,30,000/-
2. Medical expenses -------------------------------------Rs. 40,964/-
3. Loss of future income etc.---------------------------Rs.12,74,000/-
4. Special diet ----------------------------------------------Rs. 20,000/-
5. Conveyance charges --------------------------------- Rs. 20,000/-
6. Future treatment medical expenses--------------Rs. 70,000/-
Non-pecuniary damages (General damages):
7. Pain, suffering & trauma and------------------------Rs. 1,00,000/-
8. Loss of amenities, enjoyment of life, etc.------- Rs. 1,50,000/-
-----------------------------
Total Rs. 18,04,964/-
Petitioner shall be entitled to interest at the rate of 9% p.a. on this amount from the date of institution of the petition i.e. 09.03.2010 till realization, as per the judgment titled as New India Assurance Co. Ltd. vs. Bhudhia Devi & others, 2010 ACJ 2045.
23Issue no. 3 (Relief):-
On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a total sum of Rs. 18,04,964/- to the petitioner with interest at the rate of 9% p.a. from 09.03.2010 till the compensation amount is fully paid.
It is further ordered that out of the compensation amount, 50% amount alongwith accrued interest be deposited in the form of FDR for five years in the name of petitioner with liberty to withdraw monthly interest. 30% of the total compensation amount alongwith accrued interest be deposited in the form of FDR for three years with liberty to withdraw monthly interest. 10% of the total compensation amount alongwith accrued interest be deposited in the form of FDR for one year with liberty to withdraw monthly interest. Remaining amount alongwith accrued interest be paid to the petitioner in cash. These FDRs be got prepared from State Bank of India, Rohini Courts, Delhi branch and shall not be encashed without permission of the court. No loan or advance shall allow to be taken on these FDRs. Respondent no. 3 Insurance company to pay further sum of Rs. 50,000/- as counsel fee to counsel for petitioner Sh. Sumit Gupta, Adv., Enrollment no. D-518/98 by preparing separate cheque in the name of counsel as per the judgment of Hon'ble Mr. Justice J.R. Midha titled as Sat Prakash vs. Jagdish, II (2010) ACC 194.
Respondent no. 3 insurance company is directed to prepare the separate cheques of the compensation amount as per above order. Copy of this judgment be given to petitioner and counsel for respondent no. 3 insurance company for compliance. File be consigned to record room.
Announced in the open (D.K.MALHOTRA)
Court on 08.05.2012 JUDGE, MACT (OUTER-II)
DELHI