Delhi District Court
Sh. Vinod Kumar vs Sh. Pradeep Yadav on 12 April, 2013
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IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
MACP no. 67/2010
Sh. Vinod Kumar
S/o Sh. Dhongal Dass,
R/o H. No. A81, Jai Vihar,
Najafgarh, New Delhi ........Petitioner
Through: A.K. Jha, Adv.
Chamber No. K56,
Tis Hazari Courts, Delhi110054.
VERSUS
1. Sh. Pradeep Yadav
S/o Sh. Randhir Yadav
R/o RZ5A, Phase1,
Prem Nagar, Najafgarh,
Delhi.
2. Smt. Suredh Devi W/o Sh. Randhir Yadav
R/o RZ5A, Phase1
Prem Nagar, Najafgarh, New Delhi.
3. Bajaj Allianz General Insurance Company Ltd.,
C31/32, First Floor, Connaught Place,
New Delhi - 110001.
Policy Cover Note No. BZ0803518795
Valid from 24.03.2010 to 23.03.2011 ...... Respondents
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1.Date of institution: 04.05.2011
2.Date of framing of issues: 13.12.2011
3.Date of hearing arguments : 02.04.2013
4.Date of decision: 12.04.2013 AWARD/ JUDGEMENT:
1. Brief facts of the case are that on 25.12.2010, Sh. Vinod Kumar (petitioner herein) was a pillion rider on Motorcycle bearing no.
DL4SBN8165 being driven by his friend namely Sh. Rohit Kumar while going from Najafgarh to Uttam Nagar at a normal speed and correct side of the road. At about 3.50 p.m on that day when they reached in front of Sai Temple, Najafgarh then an Endeavor Car white colour bearing no. HR70P7000 (hereinafter offending vehicle) being driven by its Respondent no.1 (in short R1) with a high speed in a rash & negligent manner had hit their motorcycle with great force after coming from behind. As a result thereof, motorcycle fell down on the road and petitioner sustained grievous injuries. He was removed to Ayushman Hospital Dwarka, Delhi from the place of accident for treatment. The offending vehicle was owned by Respondent no. 2 (in short R2) which was insured with the respondent no. 3 (in short R3).
2. Pursuant to service of the notice, respondents appeared and filed their respective written statements. R1 and R2 in their respective written Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 2 of 19 -:3:- statements, denied the factum and manner of the accident pleading that petitioner sustained the injuries due to negligent driving of the motorcyclist and as such, they cannot be held responsible to pay any amount of compensation. An exorbitant amount of compensation is claimed without any justification.
3. This petition was resisted by the Insurance company/ R3 after filing a separate W. S. whereby claimed contributory negligence pleading that petitioner had sustained injuries due to his own carelessness and negligence and not because of any wrongful act or negligence on the part of the driver of the car as alleged. However, it has been admitted that vehicle was insured with it vide Policy Cover Note bearing No. BZ0803518795 and policy bearing no. OG111101180100001786 valid from 24.03.2010 to 23.03.2011 covering the period of accident subject to the terms and conditions of the policy.
4. On the basis of the pleadings of the parties, issues were framed vide order dated 13.12.2011.
5. Having heard the arguments advanced on behalf of both the sides and after perusal of material including the evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether the petitioner Sh. Vinod Kumar sustained injuries in a motor vehicle accident dtd 25/12/2010 due to rash or negligent driving of vehicle no.
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HR70P7000 by R1? .....OPP
6. The onus to prove the issue was on the petitioner. In support of the claim, Sh. Vinod Kumar, petitioner had averred the details of the accident through the affidavit Ex PW1/A and narrated the manner of accident in para no. 2 of his affidavit. On being crossexamined on behalf of R1 & R2, he confirmed the facts about the date, time and place of the accident. He categorically stated that the motorcycle was being driven at the speed of 3035 KMPH whereas offending vehicle was being run at a very fast speed. He stated that he was wearing helmet at the time of accident. Nothing adverse came out during his crossexamination to make him untrustworthy witness.
7. Besides this, the petitioner has proved the certified copies of criminal record i.e. Charge Sheet Ex. PA, FIR Ex. PB, site plan Ex. PC and Mechanical inspection report Ex. PD and MLC Ex. PE to establish the factum of the accident. Furthermore, he was the natural eye witness being the injured of the accident, thus, his testimony has to be acted / relied upon.
8. The standard of proof in a claim petition is not as rigid and as high, as in a criminal case. In a criminal case, proof beyond reasonable doubt is required, however, in a criminal petition, it is not so.
9. In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 4 of 19 -:5:- accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011).
11. From the evidence available on record, it stands established that the accident had taken place on the given time, date and place due to the negligent driving of driver of the offending vehicle and hence, issue no. 1 is decided accordingly in favour of the petitioner. ISSUE NO 2 Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? .....OPP
12. As issue no.1 is decided in favor of the petitioner in Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 5 of 19 -:6:- affirmative, petitioner is entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
13. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
14. It has been held by Hon'ble Apex Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
Broadly speaking, while fixing the amount of compensation payable to a victim of an Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 6 of 19 -:7:- 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 nonpecuniary 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 far as nonpecuniary 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 ie. 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."
15. In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) MEDICINES
AND TREATMENT
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16. Petitioner in his affidavit Ex PW1/A had averred that in an accident , the petitioner had sustained grievous injury i.e. Head injury (L), optic nerve injury with fracture, acromion and RT clavicle and facial injuries. After the accident, he was removed to Ayushman Hospital, New Delhi in PCR Van where his MLC Ex. PE bearing no. 1943/2010 was prepared. He was discharged vide discharge summary Ex. PW 1/1. Thereafter, he was shifted to Sardarjung hospital where he was hospitalized from 26.12.2010 to 03.01.2011 as indoor patient. Discharge Summary is Ex.PW1/2. He was again admitted in Safdarjung hospital on 28.03.2011 and was discharged on 07.04.2011. Discharge summary is Ex. PW 1/3 During his first hospitalization, his left eye was operated and in second hospitalization his jaw was operated in Safdarjung hospital. He suffered 30% visual disability in his left eye and disability certificate is Ex. PW 1/6. Due to the Jaws injury he suffered disfigurement of his face. It is averred that he had spent a huge amount on his treatment. Medical bills are Ex. PW 1/5 .
17. Perusal of record, it reveals that petitioner did take place on record the bills of expenses incurred by him amounting to Rs.9,877/. However, considering the nature of injuries, I am of the opinion that he must have incurred expenses over and above the bills placed on record but, I award a sum of Rs. 9,877/ to the petitioner towards medicines and treatment against the bills actually proved on record.
18. Now the question remains to be decided with regard the Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 8 of 19 -:9:- earning of the deceased. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased.
19. Before proceedings further, let me quote couple of relevant judgments:
In 2011 ACJ 2869 (SC) titled as Sanjay Batham vs. Munnalal Parihar & Ors., their lordships were pleased to make the following observations:
"Although, the appellant had suffered temporary disablement, the evidence of the doctor shows that he will require treatment in future. The Tribunal and the High Court have not awarded any compensation for future treatment, which would necessarily include doctor's fee, cost of medicine, transportation, diet, etc. Keeping in view the high cost of living, we feel that ends of justice will be served by awarding a lump sum amount of Rs.2,00,000/ for future treatment."
In 2011 ACJ 1975 titled as Sri Khumaresh V. Divisional Manager National Insurance company Ltd., the appellant, aged 20 years, Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 9 of 19 -:10:- suffered amputation of the right leg as a result of the accident. The Supreme Court held that the injury will not only severely affect his future prospects of earning, but will also permanently disable him for life and suffer necessary discomfort which accompany living without a leg. The supreme court further held that it would minimize his chances of getting married and in the light of all this, the Supreme Court award compensation of Rs. 10 Lakhs for pain and suffering, loss of income during treatment, medical expenses for whole life, loss of future earnings, loss of amenities and enjoyment of life including loss of marital prospects, conveyance charges and food and nourishment.
In Sri Laxman V. Divisional Manager, Oriental Insurance Co. Ltd. the Hon'ble Supreme Court has held that ; If the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment but also for pain, suffering and trauma caused due to accident, loss of earning and victim's inability to lead a normal life and enjoy other amenities, which he would have enjoyed but for the disability caused due to the accident.
In Gulam Nabi Bhat vs. Md. Arman Ali & Ors, MAC. App.335/2009 passed by Hon'ble High Court of Delhi decided on 07/08/2012, his Lordship was Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 10 of 19 -:11:- pleased to make following observations
14. For example, if the left hand of a claimant is amputated, the permanent physical of functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as inn the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 11 of 19 -:12:- the head of loss of future earning capacity, taking note of the reduced earning capacity."
(c) LOSS OF INCOME ON ACCOUNT OF DISABILITY : 21 PW1 during the course of his deposition had stated that he was doing
the job of tailoring/ stitching of curtains and his earning was Rs.10,000/ per month. He was a matriculate. He has relied upon the school leaving certificate Ex. PW 1/7. As there is no corroborative evidence with regard to the earning of the deceased therefore, regard is to be had to the minimum wages of non matriculate. The accident had taken place on 25.12.2010 and minimum wages of nonmatriculate were Rs.5850/ per month as on 01.02.2012. It is stated that due to the injuries sustained in an accident , his vision in the left eye has damaged to the extent of 30%. He is not in a position to perform the work of a tailor properly. It is further argued that the wages would go to increase due to inflation of rise in price index. An addition of 30% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.5,850/ + 30% (Rs.1,755/) which comes to Rs.7,605/.
Relevant paragraph 19 of the Judgment Gulam Nabi vs. Md. Arman Ali & Ors. (SUPRA) is hereby reproduced: This Court in Rakhi vs. Satish Kumar & Ors (MAC. APP. 390/2011) decided on 16.07.2012, referred to the reports of the Supreme Court in General lManager, Kerala State Road Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 12 of 19 -:13:- Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and Ors.(1994) 2 SCC 176, Sarla Dixit vs. Balwant Yadav.
(1996) 3 SCC 179, Bijoy Kumar Dugar Vs. Bidya Dar Dutta & Ors., (2006) 3 SCC 242, Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Santosh Devi Vs. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and held that as per Santosh Devi even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed.
22 Besides this, petitioner has proved a disability certificate Ex. PW 1/6 by examining Dr. Pooja Gupta, Department of Opthalmology, Safdarjung Hospital. According to Doctor, patient was found to have no perception of light in the left eye with a normal limit. Hence, he has visual disability of 30% of permanent in nature. Though the doctor during her examination stated that petitioner can perform the work of stitching and sewing but not perfectly but her cross examination cannot be ignored wherein she stated that visual disability of 30% in totality. Left eye vision cannot be improved as it has damaged permanently. His day to day activities must have been affected to some extent as he was a tailor by profession at the time of accident and hence, his earning capacity in relation to entire body is taken to be 50% of thirty percent. Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 13 of 19 -:14:- 23 As regards the age of the petitioner is concerned, the petitioner has relied upon the school leaving certificate Ex. PW 1/7 where his date of birth is mentioned as 08.02.1979. If the age of the petitioner is calculated on that basis then it came to be less than 31 years plus. An operative multiplier shall be '16' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Ends of justice would be met, if earning capacity of the petitioner is taken to be FIFTY PERCENT of 30% of permanent disability i.e. 15% and hence, compensation is granted Rs. 5850X15/100X16X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md. Arman & Ors (SUPRA) after relying upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)wherein their Lordships have pleased to make the following observations.
The provision of Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 14 of 19 -:15:- damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequence, is inevitable. A person is not only to be compensation for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
24 I, therefore, award a sum of Rs.1,68,480/ to the petitioner towards loss of earnings due to disability. New India Assurance Co. Ltd. vs. Naresh Kumar & Ors MAC. APP. No. 493/2012 decided on 07.05.2012 (DHC) is relied upon.
d) PAIN & SUFFERING: 25. Pain and suffering is covered under non pecuniary damages. To
calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
26. In the present case, it is apparent from the medical record that he had sustained grievous injury i.e. Head injury (L), optic nerve injury with Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 15 of 19 -:16:- fracture, acromion and RT clavicle and facial injuries. He had also suffered the visual disability of 30% in his left eye and thus, he must have undergone tremendous pain. The mental agony which the petitioner might have undergone at the time of accident cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
27. To compensate the petitioner under this head, I award a sum of Rs. 50,000/ to the petitioner for pain and suffering. CONVEYANCE & SPECIAL DIET :
28. PW1 during the course of his deposition has failed to substantiate the amount spent by him on conveyance and special diet with documentary evidence, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance which is apparent from the Medical Treatment papers available on record i.e. OPD cards, Investigation reports Ex.PW 1/4. He must have required to take special diet to recover from the injuries sustained by him.
29. I, therefore, award a sum of Rs 25,000/ to the petitioner towards Conveyance and special diet.
30. Keeping in view the nature of injuries and evidence available Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 16 of 19 -:17:- on record, following amount shall be just compensation: 1 For Loss of earning on account of disability : Rs.1,68,480/ 2 For medicine and treatment : Rs. 9,877/ 3 Pain and Suffering : Rs. 50,000/ 4 Conveyance &Special Diet : Rs. 25,000/ 5 Loss of Amenities : Rs. 25,000/ _________________________________________________________________ Total : Rs. 2,78,357/ (Rupees Two Lakhs , Seventy eight thousand three hundred and fifty seven only) INTEREST
31. This petition was filed on 04.05.2011. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of the petition till its realization. LIABILITY
32. No evidence has been led on behalf of the respondents including the insurance company to avoid the liability. Admittedly, the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3 and hence, R1 is the principal tort feasor and R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured with the R3, therefore it shall pay the awarded amount.
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33. In view of the above discussions, issue no. 2 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 3
Relief.
34. In view of the findings on issues no. 1 and 2 the petitioner is awarded Rs. 2,78,357/ (RupeesTwo Lakhs , Seventy eight thousand three hundred and fifty seven only)with interest.
35. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation ( with proof of deposit of the awarded amount and notice to the petitioner as well to his counsel through registered post) to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release the half of the amount to the petitioner with interest by transferring the same to his Saving Bank Accounts after keeping the remaining amount in a fixed deposit in his name for a period of one year.
36. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiary.
37. Withdrawal from the aforesaid account shall be permitted to the beneficiary after due verification and the Bank shall issue photo Identity Cards to the beneficiary to facilitate identity.
38. No cheque books shall be issued to the beneficiary without the Case No 272/11 Vinod Kumar vs. Pradeep Yadav Page 18 of 19 -:19:- permission of this Court.
39. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiary along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiary.
40. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
41. On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to his convenience.
42. The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
43. Copy of the award be supplied to both the parties at free of cost. Copy of this award be sent to the Nodal Officer of the Bank with Court stamped, photographs of the claimant and his signature along with identity proof documents forthwith.
44. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 12.04.2013. PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
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