Delhi District Court
Sh. Sanjay S/O Sh. Sripal vs ) Sh. Banwari Lal S/O Sh. Ram Kumar ... on 28 April, 2012
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IN THE COURT OF SH. D.K. MALHOTRA, ADDL. DISTRICT & SESSIONS
JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
ROHINI COURTS, DELHI
(MACT No.942/10/07)
Sh. Sanjay S/o Sh. Sripal
R/o House no.871, M-Block, Mangolpuri,
Delhi.
-----------Petitioner
Versus
1) Sh. Banwari Lal S/o Sh. Ram Kumar (Driver)
R/o Village & PO Kotputli, District Jaipur,
Rajasthan.
2) Sh. Mahavir Singh S/o Sh. Khajan Singh, (Owner/Insured)
R/o H. No. 213, Vill. & PO Bijwasan,
New Delhi.
3) National Insurance Company (Ltd.), (Insurance Company)
Jeewan Bharti Building, Connought Circus,
New Delhi.
-------Respondents
Date of institution---14.03.2008
Date of decision------28.04.2012
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT:-
Petitioner Sanjay aged about 30 years used to do labour job. It is stated that on 31.10.2007 at about 2pm the petitioner was going on his bicycle from Kirari to Mubarakpur, Delhi, side on Main Mubarakpur Road, Delhi, and he was padelling his bicycle on his proper side. At that very time a Water Tanker bearing no. DL-1GB-3548 came from opposite direction at a very fast speed and in rash and negligent manner and took a sharp turn towards wrong side and hit the petitioner with great force as a result of which petitioner fell down and the rear tyre of the said water tanker passed over his both legs and he received grievous injuries over his legs. It is further stated that the accident was caused due to rash and negligent driving on the part of driver of the offending vehicle Water Tanker bearing no. DL-1GB-3548. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No. 84/07 in police station Aman Vihar, Delhi.
Petitioner alleged that at the time of accident he was doing labour job and was earning Rs.6,000/- per month. He claimed a sum of Rs.15,00,000/- as compensation from the respondents being owner, insurance company and driver of offending vehicle under various pecuniary and non pecuniary heads.
Respondent no. 1 and 2 filed a joint written statement and totally denied of having any liability on their part towards compensation though admitted happening of an accident but totally blamed petitioner for it whereas respondent no.3 insurance company in its written statement admitted existence of insurance policy qua the offending vehicle but tried to avoid its liability on some routine technical grounds. On the basis of pleadings of the parties, following issues were framed on 08.09.2009 by my Ld. predecessor:
1) Whether the petitioner received injuries in the road side accident caused on 31.10.2007, at about 2:00pm at Mubarakpur Road, -3- near Timber Market, Kirari, Delhi, due to rash and negligent driving of R-1/driver of offending vehicle No.DL-1GB-3548? OPP
2) Whether the petitioner is entitled to compensation, if so, to what extent and from which of the respondents? OPP
3) Relief.
In order to prove his case, petitioner examined six witnesses in all namely Sh. Sanjay, petitioner himself as PW1, Sh. Rakesh Kumar, Record Clerk, Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, as PW2, Dr. R. K. Dahiya, owner of Navjyoti Hospital, Sultanpuri, Delhi, as PW3, Dr. Ashok Sharma, Jr. Specialist (ENT), Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, as PW4, Dr. Sanjay Kumar, Specialist Orthopedics, Sanjay Gandhi, Memorial Hospital, Mangolpuri, Delhi, as PW5 and Dr. Dheeraj. A, Sr. Resident, Department of Physical Medicines and Rehabilitations, AIIMS, as PW6.
PW1 petitioner Sanjay in his evidence by way of affidavit reiterated the facts narrated in his evidence by way of affidavit and further stated that from the spot of accident he was removed to Sanjay Gandhi Hospital where he was operated upon and plates were inserted in his legs and thereafter he remained admitted in Jyoti Nursing Home, Sultanpuri, Delhi, thereafter he was also treated from New Sanjivini Hospital, Prem Nagar-II, Delhi, and thereafter remained under treatment of Sh. B. D. Sharma, PGIMS, Rohtak (Haryana) and is still under treatment with Sanjay Gandhi Hospital, Delhi. He further stated that due to grievous crush injuries his right leg has become senseless and he even cannot walk without help of walker. He further stated that he spent more than Rs.50,000/- on his treatment etc.. He has proved on record his treatment record consisting of 19 pages as Ex.PW1/1, photocopy of his disability certificate as Ex.PW1/2 (OSR), a coloured photograph of right leg as Ex.PW1/3 and copy of election Card as Ex.PW1/4 (OSR). During cross- examination by counsel for R1 and R2 he denied the suggestion that accident was not caused by vehicle bearing registration no.DL-1GB-3548 and that respondent no.
-4-1 is falsely implicated in case FIR 84/2007. He further stated that no other witness was present at the spot at the time of accident and his employer took him to hospital. He further stated that he had seen the vehicle which was a water tanker but do not know its number and who was driving the said tanker. During cross-examination by counsel for respondent no.3 insurance company, petitioner has stated that he do not have any document in respect of his income. He denied the suggestion that he was not earning Rs.6000/- per month at the time of accident and that he spend Rs.50,000/- on his treatment, conveyance, spl. Diet and medicines. He further stated that he is 8th pass and have possessed date of birth certificate but not brought the same. He denied the suggestion that he is deposing falsely and have filed a false claim.
PW2 Sh. Rakesh Kumar has brought the attested copy of MLC bearing no.16384/07 dated 31.10.2007 of petitioner Sanjay son of Sh. Sripal and proved the same collectively as Ex.PW2/A (running into 8 pages). He further stated that as per record Sanjay was admitted in their hospital on 01.11.2007 and was discharged on 15.11.2007. Respondents have preferred to not cross-examine the witness despite opportunity given.
PW3 Dr. R. K. Dahiya has deposed that Sanjay remained admitted in his clinic for about one month, however, he do not remember the dates. He further deposed that record was not maintained because the patient was given dressing and whatever medicines were prescribed, were brought by employer of patient. He further stated that he had not charged anything from the Sanjay or his family, however charged Rs.400/- per day for 15 days from the employer Sh. Vishnu Dutt Sharma for the purpose of dressing on his both legs. He had not issued any receipt of payment to the employer as neither the employer of the Sanjay demanded nor he gave. He has proved prescription dated 02.01.2008 signed by him as Ex.PW3/A. Counsel for respondents no.1 and 2 has not preferred to cross-examine the witness despite opportunity given. During cross-examination by counsel for respondent no.
-5-3 / Insurance Company he stated that he is competent to issue medicines being Bachelor of Ayurvedic Medicine System. He also proved on record copy of his identity card issued in his name as Ex.PW3/B (OSR). He further stated that he had entered the name of patient in his register only. He further stated that he continued the treatment on the basis of the medical record of patient Sanjay prepared in Sanjay Gandhi Memorial Hospital.
PW4 Dr. Ashok Sharma deposed that he was a member of the Disability Boad, which had issued the Disability Certificate no.2665 dated 18.03.2010 to patient Sanjay son of Sh. Sripal. Sanjay was assessed to have suffered the permanent disability of 44% in relation to right lower limb. The photocopy of disability certificate is already Ex.PW1/2, signed by him at point-A. He further deposed that he cannot explain whether the patient Sanjay can work due to disability or not as the Orthopedic Surgeon can tell the same clearly. He further stated that Dr. Sanjay Kumar, is head of Department of Orthopedic in the hospital and he be summoned. Counsel for respondents have preferred not to cross-examine the witness despite opportunity given.
PW5 Sanjay Kumar stated of having seen the record pertaining to Disability Certificate No.2665 of patient Sanjay. He further deposed that he was not the member of Disability Board, however the patient Sanjay was under treatment in their department. He further stated that he has seen the copies of the OPD treatment card of the patient, which shows that patient lastly visited in their hospital in the month of June, 2010 and the same are collectively exhibited as Ex.PW5/A (OSR). He further stated that prima facie the permanent disability of the patient is more than 44% as mentioned in the certificate and it is recommended that he be again examined from another Medical Board to ascertain the extent of disability. He further deposed that at present their hospital does not issued any disability certificate, so patient be got examined at BSA hospital. He further stated that he has seen the injuries of the petitioner and it is very difficult to him to do labour work.
-6-Counsel for respondents have not cross-examined the witness despite opportunity given.
PW6 Dr. Dheeraj A., stated that he was one of the member of the board which gave the report regarding disability of the injured Sanjay who is present before the tribunal today. He further stated that on the basis of physical examination and medical treatment record of Sanjay they gave the disability report assessing the disability to be 40% temporary disability to be reassessed by five years. He further stated that there was no orthopedician in their Board. He further stated that Disability Certificate signed by him which is Ex.PW6/A was given by them. He further deposed that after five years there is no chance of reduction in percentage of disability and it may increase. He further deposed that patient Sanjay is not in a position to do labour work as he is having difficulty in squatting, standing with single limb and walking on uneven surfaces and difficulty in performing daily activities. He further deposed that in circumstances of patient the infection may spread and it may need amputation. Counsel for respondents have not cross-examined the witness despite opportunity given.
Vide order dated 22.09.2011 counsel for respondents no.1 and 2 as well as counsel for respondent no.3, both gave their respective statements to the effect that they do not want to lead evidence in their defence. However, subsequently vide order dated 05.03.2012 and 24.03.2012 respondents no.2 and 3 as well as respondent no.1 were proceeded ex-parte respectively for their non appearance.
I have heard counsel for the parties and perused the material on record. My decision on the above mentioned issues is as under:
Issue no. 1:--7-
The principles to be followed in the case of motor accident claims has 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 by Hon'ble Guahati High Court 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) 3 SCC 475 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 -8- 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/injured as PW-1 in his evidence disclosed how and in which manner the accident took place. Nothing adverse could come in the cross- examination of the witness to discard his version. It is not the case of the respondent no.1 that he knew either the petitioner or the IO before hand or that IO has any grudge against him, though he is facing prosecution. There is nothing on record to show that respondent no.1 and 2 had lodged any complaint to any higher authority regarding alleged false implication of respondent no.1 in criminal case. There is also no evidence on record to point out that respondent no.1 and 2 had any enmity with injured or his family members or investigation officer to create possibility of false implication of respondent no.1 in criminal case. 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. However, during cross- examination, counsel for respondents no.1 and 2 has put a suggestion that accident was not caused by vehicle bearing no.DL-1GB-3548 and that respondent no.1 is falsely implicated in cae FIR no.84/07 PS Aman Vihar, which was specifically denied by the petitioner. Merely putting a suggestion and not proving the same by any -9- evidence is not sufficient to hold that accident had not occurred due to rash and negligent driving of offending vehicle by respondent no.1 and he is falsely implicated in state case. Petitioner has also placed on record the copies of criminal case which shows that police after investigation found that accident took place due to rash and negligent driving of the offending vehicle by respondent no. 1. No effective cross examination of the petitioner was conducted by the respondents to this effect, so its adverse inference has to be taken against them. Police investigation also prima facie reveals the involvement of respondent no.1 in causing the accident due to driving offending vehicle in rash and negligent manner. Hence it is held that the accident took place due to rash and negligent driving of Water Tanker bearing no.DL-1GB-3548 by respondent no. 1. Accordingly, 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 -10- 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 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 -11- 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:
"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 -12- 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 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.-13-
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, 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".-14-
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):
Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
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.
c) Future medical expenses.
Non Pecuniary damages (General damages):
a) Damages for pain suffering and trauma as a consequence of the
injuries.
b) Loss of amenities (and/or loss of prospects of marriage).
c) 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 -15- 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 accident.
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 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 -16- 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 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. 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 alleged that he was working as labourer but he has not disclosed details of the same. There is no proof on record to show that petitioner was working as labourer and was earning salary of Rs.6,000/- per month. In such -17- situation, the loss of salary has to be given according to rates of minimum wages of unskilled person. Accident took place on 31.10.2007 and at that time, minimum wages of unskilled worker were Rs.3,516/- per month. Hence, monthly income of the petitioner is presumed to be Rs.3,516/- per month.
As per his Election I-Card, petitioner was aged about 30 years at the time of accident. Petitioner was working as labourer at the time of accident. 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. Hon'ble Delhi High Court in Sajha Vs. National Insurance Co. 2010 ACJ 627 and New India Assurance Co. Vs. Raja Ram MAC. APP. No. 175/06 decided on 25.8.2009 held that keeping in view the trend of increase of minimum wages of unskilled worker from time to time and rises in price index and inflation, it can be said that minimum wages of unskilled worker would get almost double over a period of next ten years and thus future prospects should be given upon minimum wages also.
Thus applying the formula given in these judgments, the monthly income of the petitioner can be held at Rs.5274/- (3516 + 50%).
PW6 during his examination proved Disability Certificate of petitioner Sanjay as Ex.PW6/A. He further stated that there is no chance of reduction in percentage of disability and it may increase. He further opined that patient Sanjay is not in a position to do labour work as he is having difficulty in squatting, standing with single limb and walking on uneven surfaces and difficulty in performing daily activities. He further opined that in circumstances of patient the infection may spread and it may need amputation. As per the evidence brought on record in relation to treatment and disability certificate Ex.PW6/A of petitioner/injured, he is completely disabled in relation to crush injuries on both legs to the extent of 40%. He is not working because being not capable of working and in that very nature of the things the functional disability is 100% more than 70% physical disability. Hence disability on injured in relation to right lower limb to the extent of 40%, is assessed to 100% -18- functional disability. Counsel for the petitioner has cited judgment passed by Hon'ble Supreme Court of India titled as Raviraj Udupa Vs United India Insurance Co. Ltd. & Others 2012 ACJ 286 decided on 16.08.2011. It is the claim of the petitioner that at the time of accident he as about 28 years of age with good health and physique and was earning a handsome salary per month besides other income i.e. tuition, etc due to said accident the injured lost his income and got 70% which amounts to complete functional disability of 100%, permanent disability as the petitioner would not be in a position to do labour work as he is having difficulty in squatting, standing with single limb and waling on uneven surfaces an difficulty in performing daily activities. Moreover, in such circumstances the infection may spread and it may need amputation. Petitioner spent on his treatment and the same is still going on. His job profile has also been hampered/affected badly due to this accident. He is having his family to look after. He is still spending on his treatment and compelled to travel by auto or taxi to cover the distance and the said expenses will be a permanent expenses in future. The life of the petitioner has become hell due to the conduct of respondent No.1 & 2 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his parents/brothers and other relations. 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.
As per election identity card of the petitioner his age is 30 years on the date of accident. Hence in view of decision of Hon'ble Supreme Court of India in Sarla Verma Vs. DTC 2009 ACJ 1298, multiplier of 16 has to be applied to count loss of earning capacity.
Petitioner is completely disabled in relation to right lower limb to the extent of 40% and was treated upon and as per medical record qua admission and -19- discharge record of Sanjay Gandhi hospital from 01.11.2007 to 15.11.2007 which is Ex.PW1/1(Colly. running into 19 pages), follow up OPD treatment Ex.PW2/A(Colly. running into 8 pages). Medical record shows that he visited the doctors from time to time. In such situation, I am of the view that petitioner is required to be reimbursed the amount towards loss of income for the period of one year which comes to Rs.42,192/- (Rs.3516x12).
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.7,08,825.60 paise as per the formula (5274 X 12 X 16 X 70%). Accordingly petitioner is granted loss of future income at Rs. 7,08,826/- (in round figure).
Medical record shows that petitioner mainly took treatment from govt. hospital where normally most of the treatments are given free of cost at the state expenses. The claim of petitioner made in the petition that he spent Rs.50,000/- on medical treatment cannot be accepted being without any supportive evidence and bills especially when he got his treatments from govt. hospitals.
Petitioner further averred that he spent on his treatment and the same is still going on. His job profile has also been hampered/affected badly due to this accident. He is having his family to look after. He is still spending on his treatment. PW6 also deposed that petitioner is not in a position to do labour work and not only this in circumstance of petitioner Sanjay the infection may spread and it may need amputation. The life of the petitioner has become hell due to the conduct of respondent No.1 & 2 besides severe economic loss. The income of petitioner has also affected and he would not be able to live a normal life and most likely he would be entirely dependent upon his parents/brothers and other relations. There is no dispute with regard to the disability of the injured as well as the fact that his -20- treatment will go on in further also. Hence, the petitioner / injured is entitled to Rs.50,000/- towards future medical expenses.
No proof of spending upon conveyance and special diet is brought on record but it is a fact that normally 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. Accordingly I am of the view that maximum petitioner can be paid lump sum Rs.50,000/- towards special diet and Rs.25,000/- towards conveyance charges.
Non Pecuniary Damage:
Damages for pain, sufferings, fracture and trauma of amputation of limb, Hon'ble Supreme Court in case Govind Yadav vs. The New 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 crush of both legs was meager. It is not in dispute that the appellant had remained in the hospital for quite a long period. It is not possible for the courts to make a precise assessment of the pain and trauma suffered by a person whose limb would be 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 30 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, disfigurement and trauma caused.
It can only be a matter of imagination as to how the injured will have to live for the rest of life with this functional disability of 70%. The injured can be expected to live for at least 50 years. During this period he will not be able to live like -21- normal human being and will not be able to enjoy the life. He is already a married man hence there is no question of the prospects of his marriage. Hence I award him a sum of Rs. 1,50,000/- for the loss of amenities and enjoyment of life as per the judgment titled as Oriental Insurance Company vs. Vijay Kumar Mittal, (2008) ACJ 1300 and as per the judgment of Govind Yadav's case. .
Insurance company has not raised any defence except the defence to the extent of damages. Beside this respondent no.3 insurance company has failed to bring on record any other evidence to show that the documents of the offending car were not proper or genuine. Insurance company is not able to prove from any evidence that it is liable to be exonerated and is not liable to pay the compensation amount as ordered by the court. Hence, the respondent no.2 shall be liable to pay the entire compensation amount.
In view of the above discussions this issue is decided in favour of petitioner and against the respondent by holding that he is entitled to get the following compensation from the respondent No.3:-
Pecuniary damages (Special damages):
a) Loss of Income for 12 months---------Rs. 42,192/-
b) Future Medical Expenses --------------Rs. 50,000/-
c) Loss of future income etc. -------------Rs. 7,08,826/-
d) Special diet --------------------------------Rs. 50,000/-
e) conveyance ---- ---------------------------Rs. 25,000/-
Non-pecuniary damages (General damages):
f) Pain and sufferings & trauma-----------Rs. 1,00,000/-
e) Loss of amenities & enjoyment of life- Rs. 1,50,000/-
______________
Total : Rs. 11,26,018/-
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ISSUE NO.3 : Relief
Petitioner is entitled to a sum of Rs.11,26,018/- alongwith interest @ 9% as per the judgment in case New India Assurance Co. Ltd Vs Bhudhia Devi and others reported in 2010 ACJ 2045, from 14.03.2008 till the payment is made by the insurance company within 30 days from the date of this award alongwith accrued interest. In addition to that the insurance company to pay a sum of Rs.51,000/- Plus Rs.4000/- out of pocket expenses towards lawyer charges by making a cheque in the name of lawyer's Sh. K. R. Sharma, Enrl. No. D-853/95 as per judgment of Hon'ble High Court in case titled Sat Prakash Vs Jagdish reported in II (2010) ACC 194 passed by justice J.R. Midha.
It is further ordered that out of compensation amount, a sum of Rs.5,00,000/- be deposited in FDR for five years and Rs.2,00,000/- be deposited in FDR for ten years with State Bank of India, Rohini District Court Complex Branch, Rohini, Delhi. Remaining amount alongwith accrued interest be deposited in the savings bank account of State Bank of India, Rohini District Court Complex Branch, Rohini, Delhi, with liberty to withdraw Rs.6,000/- per month towards household expenses till amount is exhausted to the satisfaction of the identity of the injured / petitioner by the bank manager concerned. FDR be not broken without the permission of this Tribunal and be renewed from time to time. No loan or advance be given against the FDR amount without the permission of this Tribunal. No ATM facility is being provided to the injured against the withdrawal of payment in cash. FDR be kept in the State Bank of India, Rohini branch. Ordered accordingly. File be consigned to Record Room.
Announced in the open (D.K.MALHOTRA)
Court on 28.04.2012 JUDGE, MACT (OUTER-II)
DELHI