Delhi District Court
Babu Lenka vs . Shashi Bhushan Etc. on 4 January, 2010
: 1 :
IN THE COURT OF MS. REENA SINGH NAG POMACT (SOUTH)
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 646/06
PS Malviya Nagar
Date of arguments: 04.01.2010
Date of decision : 04.01.2010
IN THE MATTER OF :
Petition no. 409/06
Babu Lenka vs. Shashi Bhushan etc.
Date of institution in this court : 25.09.2006
Date of first institution : 25.09.2006
1. Babu Lenka
S/o Sh. Bhagwan Lenka
2. Mrs. Aparna Lenka
w/o Sh. Babu Lenka
Both resident of :
village Mituani, PO Khaira
District Balasore (Orissa)
Presently residing at :
house no. D7/1, Katwaria Sarai
New Delhi
Petition no. 442/06
Date of institution in the this court : 16.10.2006
Date of first institution : 16.10.2006
: 2 :
1. Suresh Kumar Lenka
s/o Sh. Abhimanyu Lenka
r/o village Nahanga via Kupari
District Balasore, Orissa
Presiding residing at :
D7/1, Katwaria Sarai
New Delhi
Versus
1. Shashi Bhushan Sinha
s/o Sh. J. Sinha
r/o E155, Chhatarpur Extension
New Delhi (Drivercumowner of
Santro car no. DL3C
AJ1528)
2. Ashok Kumar
s/o Sh. Rohtash Singh
r/o 192/22, gali no. 8
Gandhi Nagar, Gurgaon
Haryana (Driver of Honda City
car no. DL9CG2785)
3. Hilex India Pvt. Ltd.
F33, Rajouri Garden
New Delhi (Registered owner of
Honda City car no. DL
9CG2785 )
4. Tata AIG General Insurance Co. Ltd.
First floor, Lotus Tower
: 3 :
Community Centre, New Friends Colony
New Delhi (Insurer of vehicle no.
DL3CAJ1528)
5. IFFCOTOKIO,
4th and 5th floor, IFFCO Tower
Plot no. 3, 3rd floor, Sector29
Gurgaon, Haryana
Also at :
IFFCO House,
3rd floor, 34, Nehru Place
New Delhi19 (Registered Insurer of
car no. DL9CG2785)
Common respondents in both the petitions
AWARD
1. Both the above claim petitions have been filed u/s 166 and 140 M.V. Act by the injured Suresh Kumar Lenka claiming compensation of Rs. 5 Lacs due to the grievous injuries received and by parents of deceased Pradeep Kumar Lenka claiming compensation of Rs. 10 Lacs in the accident which took place on 28.05.2006.
2. Briefly, the facts are that on the fateful day at 10.15 A.M, the petitioner, Suresh Kumar Lenka along with his relative Pradeep Kumar Lenka was going to Kalkaji from his house on bicycle which he was peddling and when they reached at Aurvindo Marg, opposite Mother International School, a Santro car no. DL3CAG1528 driven by R1 Shashi Bhushan Sinha came at a very high speed rashly and : 4 :
negligently without blowing any horn and hit the bicycle of the petitioner from behind as a result they both fell down on the road and when they were in the process of getting up, in the meanwhile, another Honda City car bearing registration no. DL9CG2785 driven by respondent no. 2 Ashok Kumar at a high and negligent speed dashed against the stationary Santro car which had stopped after the first impact and due to such dashing, Santro car again hit both of them who were removed to AIIMS by the police. Petitioner Suresh received fracture injuries on his shoulder and other multiple abrasions on all over his body.
3. Pradeep Kumar was examined at AIIMS. He received initially fracture injuries on his neck, hand and other parts of the body. He was discharged from AIIMS on 03.07.2006 and was taken to Kolkatta for better treatment where he remained under the treatment of Dr. P.K. Ghosal, MBBS, District 24, Parganas (N) and Pradeep succumbed to his injuries on 17.08.2006 at 7.40 P.M. His postmortem was conducted on 18.08.2006.
4. In this case FIR no. 640/06, u/s 279/337/304A IPC was registered at P.S Malviya Nagar.
5. In response to the notice of the petition to the respondents, WS was filed by all the respondents.
6. On 13.04.2007, vide order of Ld. Predecessor Sh. A.S. Yadav, both the petitions were consolidated as they both arise out of the same accident and case of Babu Lenka was treated as a lead case for the purpose of recording the proceedings and evidence. On that day, : 5 :
following consolidated issues were framed:
1. Whether Pradeep Kumar Lenka received fatal injuries and Suresh Kumar Lenka sustained injuries on account of rash and negligent driving of Santro car bearing no. DL3CAJ1528 and Honda City car bearing no. DL9CG2785 on the part of R1 and R2 on 28.05.2006?
2. To what amount of compensation are the petitioners entitled and from whom?
3. Relief
7. In support of the petition, following witnesses were examined in the lead case:
8. PW1 Babu Lenka, father of deceased Pradeep who filed his affidavit in the evidence and referred to the other documents viz. the discharge summary of Pradeep as Ex.PW1/1 showing his hospitalisation period at AIIMS from 28.05.2005 to 03.07.2006, OPD card of AIIMS dated 08.07.2006 as Ex.PW1/2, concession certificate issued on 11.07.2006 in favour of Pradeep by AIIMS as Ex.PW1/3, the original prescriptions of Dr. Ghosal dated 01.08.2006 as Ex.PW1/4 and dated 18.08.2006 as Ex.PW1/5; the original bills, invoice and 57 receipts running in 31 pages in respect of expenses of Rs. 45,000/ incurred for the period from 28.05.2006 to 03.07.2006 and subsequently at home at Delhi on purchase of medicines, test, MRI's, implants etc. vide Ex.PW1/6, photocopy of postmortem as Mark Ex.PW1/A, photocopy of : 6 :
original High School Certificate as Ex.PW1/7. It was claimed that deceased was a graduate. In his cross examination, he admitted that he was not an eye witness and that he was not having any proof to show that Pradeep was earning Rs. 5,000/ per month.
9. PW2 is Dr. Ashish Suri from AIIMS hospital (Department of Neuro Surgery), who confirmed the discharge summary of Pradeep Kumar vide Ex.PW1/1 and testified that at the time of discharge, Pradeep Kumar was having weakness in hands and complete paralysis of both legs but he was otherwise conscious and was following the commands but his condition remained unchanged before and after the operation because of damage to the spinal cord due to the injuries sustained in the accident. He also stated that chances of improvement of such a patient are very less. In his cross examination by R5, doctor stated that paralysis could ultimately result in death of the patient but he could not say with any certainity in the absence of other documents relating to the treatment that injuries suffered by Pradeep was solely responsible for his ultimate death. He also added that at the time of discharge, there was no immediate threat of death.
10. PW3 is Suresh Lenka, who is petitioner himself and is an eye witness who proved his affidavit as Ex.PW3/X and also tendered in evidence the documents Ex.PW3/1 to 5 viz. OPD patient card of AIIMS, the educational certificate from high school and college for graduation.
In his cross examination, he remained firm on the mode and manner of accident as narrated in the petition and also claimed that besides : 7 :
Government hospital, he also received treatment from a private doctor in his village. He denied any rashness and negligence on his part.
11. PW4 is Shankar Prasad, MRT from AIIMS hospital, who proved the MLC of Suresh Kumar by Chitranjan Behra on 28.05.2006 vide Ex.PW4/1. Validity of the insurance policy by the respective insurer in respect of both the offending vehicles has not been disputed.
12. I have heard the arguments, and gone through the case file.
My findings on the issues are as under :
ISSUE NO 1
13. This is a petition u/s 166 of the MV Act as such petitioner is required to prove the rashness and negligence by the driver in causing the accident. In this case, driver of both the offending vehicles are alleging against each other as they are responsible for the accident. In motor accident case, the standard of proof is very mild and the rash and negligent act by the driver of the offending vehicle is not to be established by the petitioner beyond all shadow of reasonable doubts. It is the duty of every motorist to drive the vehicle in a controlled manner so as to avoid any impact with any person or object coming in his way.
The Santro car did not keep a safe distance from the cyclist and struck the cyclist from behind and rashness and negligent act on the part of driver of the Santro vehicle is writ large. Now, coming to the role of rash and negligent driving by Honda City car, in my considered view, its driver was also rash and negligent as he did not even notice the stationary Santro car and struck the same from behind thereby giving : 8 :
the inference that the driver of the Honda City car was not in control of the vehicle so as to bring it to a halt on seeing the exigency taking place ahead in this case, hitting of the cyclist by Santro car and Santro car becoming stationary thereafter. As such issue no. 1 is decided in favour of the petitioner and against respondent no. 1 and 2 who are held as contributing negligence to the extent of 50 % on their respects parts in causing the accident. (R1 and R2 both are responsible for 50 % contributory negligence each).
Issue no. 2:
14. Since issue no. 1 has been decided in favour of the petitioner and against the respondent no. 1 and 2, petitioners are entitled to compensation as under: Compensation in the case of Babu Lenka Medical expenses:
15. Deceased Pradeep remained hospitalised from 28.05.2006 to 03.07.2006 as per discharge summary Ex.PW1/R. As per PW2, there were injuries in the spinal cord of patient Pradeep and his both the legs were paralysed and he also underwent operation at AIIMS. Petitioner has claimed to have spent Rs. 45,000/. The bills on record are roughly over Rs. 43,000/, so petitioners are awarded Rs. 45,000/ under this head.
Pain and sufferings : 9 :
16. From the nature of injuries suffered by Pradeep, it can be very well appreciated that he must have suffered immense pain physically and mental sufferings emotionally and is entitled to compensation during the period of his survival after the accident for a brief duration up to 17.08.2006 and Rs. 1,00,000/ is awarded under this head.
Loss of dependency:
17. The victim met with the accident on 28.05.2006. He expired on 17.08.2006. His age in the petition has been claimed as 26 years, the copy of the postmortem report is mark Ex.PW1/A. His High School Certificate from the Board of Secondary Education, Orissa mentions the date of birth of Pradeep as 07.08.1980. Mark Ex.PW1/A reflects that Autopsy was conducted at Barrackpore Hospital at 24, Pargana on 18.08.2006. However, VISRA report was awaited. In this context, the testimony of PW2 Dr. Ashish Suri assumes significance who testified that the injuries suffered by the patient and paralysis can ultimately result in death of the patient. The only logical conclusion drawn in the obtaining facts and circumstances is that it was because of the injuries sustained in the accident on 28.05.2006 that the deceased succumbed to his injuries subsequently on 17.08.2006 and as such compensation has to be awarded as per the judgment of Sarla Verma. Deceased was unmarried at the time of accident and is survived by his parents. The age of mother has been mentioned in the petition as 42 years. Voter card of Arpana Lenka, mother of Pradeep reflects that as on 01.01.1994 : 10 :
her age was 30 years and at the time of filing of petition her age was about 42 years. The same has not been challanged by the respondents. The petitioner father has not been able to lead any evidence in support of income of deceased as Rs. 5,000/ per month. So, his income is to be computed under the Minimum Wages Act at the time of accident and same was Rs. 4031/ for graduate (deceased was a graduate). The multiplier of 14 is to be applied on the basis of age of mother of deceased. On the basis of formula (X + 2 X) /2, where X is the monthly income, 4031/ to appreciate the future increase in income on the basis of inflations, on the analogy of Sarla Verma, the total income comes to Rs. 10,15,812 ( Rs. 6046.5 x 12 x 14). Although, deceased was unmarried in this case, but had he survived, he would have remained in the state of vegetative existence only due to the paralysis suffered by him due to fracture injuries on the neck, so no deduction is being made on account of his personal expenses in the obtaining facts and circumstances as it is expected that in the case of survival, deceased would have required the services of the attendant. Loss of income:
18. The confinement period in bed after the accident was approximately about three months and as per minimum wages of graduate, income has to be computed as Rs. 4031/, so there is loss of income of Rs. 4031 x 3 = Rs. 12,093/ to Pradeep. Petitioners are accordingly awarded Rs. 12,093/.
Loss of amenities:
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19. Pradeep was confined to bed and could not enjoy the normal activities of life for the period of confinement before his death and he is awarded Rs. 15,000/ for the same. Conveyance:
20. Pradeep was taken to Kolkatta for his treatment after his discharge from AIIMS. Due to the nature of injuries, he must have been taken to the doctors at Delhi and at Kolkatta for follow up visits and he must have incurred expenses on this count and he is awarded Rs. 15,000/ for the same.
Love and affection:
21. Although loss of life cannot be compensated in any manner but, in token of this relief, petitioners are awarded Rs. 50,000/. Funeral expenses:
22. Under this count, petitioners are awarded Rs. 10000/ as the expenses, which they incurred on the funeral of the deceased . Loss of estate:
23. Under the customary head of loss of estate, I award Rs. 10,000/ .
24. As such petitioners are awarded the compensation under the following Head : On account of medical expenses: 45,000.00 Pain and sufferings : 1,00,000.00 Loss of Dependency : 10,261,44.00 Loss of income : 12,093.00 Loss of amenities : 15,000.00 : 12 :
On account of conveyance : 15,000.00
Loss of Love and affection : 50,000.00
Loss of Estate : 10,000.00
Funeral Expense : 10,000.00
Total : Rs. 11,82,905.00
Relief:
25. Petitioners are awarded Rs. 11,23,905.00 as compensation and award is passed accordingly in favour of the petitioners and against the respondents jointly and severally. Petitioners are also entitled to interest @ 7.5 per cent from the date of filing of petition viz. 25.09.2006 till the deposit of cheque amount with the Tribunal. Petitioner no. 1 father is entitled to 10% whereas petitioner no. 2 being mother is entitled to 90 % of the award amount. 70% of the award amount falling in share of petitioner no. 2 and 50 % of award amount falling in share of petitioner no. 1 shall be kept in FDR's for 10 years and petitioners are entitled to draw interest thereon monthly without reference to court. Petition no. 446/06 Suresh Lenka vs. Shashi Bhushan Sinha Loss of income:
26. Petitioner has claimed that he was student of final year and was giving tuitions to children and was earning Rs. 3,000/ per month.
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He has admitted in his cross examination that he has not placed on record any document to show his income as Rs. 5,000/ per month from the tuitions. He being an abled bodied person, it can be presumed that he must be earning to make his livelihood and his income is to be computed as per Minimum Wages Act for graduate worker, since relevant educational document has been placed on record by the petitioner. At that time, the minimum wages for a graduate was Rs. 4031 for graduate. As per his MLC, the nature of injuries suffered by him is grievous. He was subjected to xray of skull, of right clavicleKP, xray of chest, PA View. In vieww of the nature of the injuries, it can be appreciated that he must have suffered and could not have earned for atleast four months. So, he is awarded Rs. 4031 x 4 = Rs. 16124/. Pain and suffering:
27. As for pain and suffering, due to the nature of injury as discussed above, it is expected that petitioner must have been put to lot of inconvenience in his day to day personal work such as attending to call of nature etc., so he is entitled for compensation in sum of Rs. 35,000/ and award is passed on this count accordingly. Conveyance:
28. Petitioner is awarded Rs. 10,000/ on account of conveyance.
Special diet :
29. The petitioner is awarded Rs. 5,000/ for special diet as it is common knowledge that when one suffers injuries or remains ill, is : 14 :
required to take special diet.
30. As such petitioner is awarded the compensation under the following Head : Loss of income : 16,124.00 Pain and suffering : 35,000.00 Conveyance : 5,000.00 Special diet : 5,000.00 Total : Rs.61,124.00 Relief:
31. Award is passed in favour of the petitioner in sum of Rs. 61,124.00 and against the respondents along with interest at the rate of 7.5% per annum from the date of filing of petition viz. 16.10.2006 till deposit with the tribunal within one month of the order.
32. In both the petitions, the liability shall be discharged by insurer R4 and R5 in equal proportion i.e. 50 % each by depositing the award amount within 30 days from the date of order, as validity of insurance policy of offending vehicle on the date of accident is admitted by the respective insurer.
33. Let for the identification of the petitioner(s) in execution proceedings, the copy of the relevant page of the petition wherein photograph of the petitioner(s) is/are affixed, be annexed with the order of award.
34. Copy of the award be given to the parties concerned as per law and copy be kept in the other file.
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35. Award is passed accordingly.
Announced in open court 04.01.2010 REENA SINGH NAG PO MACT, SOUTH NEW DELHI