Delhi District Court
Dinesh Kumar vs . Hari Shanakar on 31 January, 2013
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Dinesh Kumar vs. Hari Shanakar
Samunder Singh vs. Hari Shankar
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL, DWARKA
COURTS, NEW DELHI
IN THE MATTER OF :
SHRI DINESH KUMAR VS. SH.
HARI SHANKAR & ORS
M.A.C.P NO 800/2008/07
Sh. Dinesh Kumar
S/o Shri Ram Kishore
R/o H. no. 124, V& PO Mahipalpur,
New Delhi.
........Petitioner
VERSUS
1. Shri Hari Shankar
S/o Shri Ram Kishore Sharma
R/o Mohalla Uprahi, Village Mahipalpur,
NewDelhi 110037. OwnercumDriver
2. M/s. Oriental Insurance Co. Ltd.
88, Janpath, Connaught Place, New Delhi - 110001.
Insurance Company of Offending Vehicle no. DL1YA0431(Indigo Car)
Vide Cover Note no. ZA/796773 Valid from 02.09.2003 to 1.09.2004
.......Respondents
MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar
MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page1 of 30
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Dinesh Kumar vs. Hari Shanakar
Samunder Singh vs. Hari Shankar
AND
IN THE MATTER OF :
SH. SAMUNDER SINGH VS. HARI SINGH.
M.A.C.P NO 798/2008/07
1. Shri Samunder singh
S/o Shri Phool Singh,
R/o H.no. 466, V& PO Mahipalpur,
New Delhi 110037.
....... Petitioner.
VERSUS
1. Shri Hari Shankar
S/o Shri Ram Kishore Sharma
R/o Mohalla Uprahi, Village Mahipalpur,
NewDelhi 110037. OwnercumDriver
2. M/s. Oriental Insurance Co. Ltd.
88, Janpath, Connaught Place, New Delhi - 110001.
Insurance Company of Offending Vehicle no. DL1YA0431(Indigo Car) Vide Cover Note no. ZA/796773 Valid from 02.09.2003 to 1.09.2004 ...............Respondents MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page2 of 30 -:3:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar
1. Date of institution: 16/11/2007
2. Date of framing of issues: 03/12/2008
3.Date of hearing arguments : 28/01/2013
4. Date of decision: 31/01/2013 AWARD/ JUDGEMENT:
1 This judgment disposes of two petitions bearing no 800/08/07 titled as "Dinesh Kumar vs. Hari Shankar & another." and petition no. 798/08/07 titled as "Samunder Singh vs. Hari Shankar & another" . Since both these petitions had arisen out from the accident occurred on 07/03/2004, therefore, the same were consolidated vide order dtd 03/12/2008 with the direction to record the evidence in petition no 800/08/07 titled as " Dinesh Kumar vs. Hari Shankar & another'' by treating the same as leading case.
2. The case of the petitioners ( in both the petitions ) is that on 07/03/2004 Dinesh Kumar (petitioner in petition no 800/08/07) along with Samunder Singh (petitioner in petition no 798/08) boarded the Indigo Car bearing no. DL1YA0431(hereinafter Offending vehicle) from Palam as passengers for proceeding towards Najafgarh which was being driven and owned by Respondent no.1 (in short R1) at a very high speed rashly and negligently in Zig Zag manner in contravention of the traffic rules. At about 06.40 p.m, when they reached Hanuman Mandir on Chhawla Road after crossing Jhatikara turn then the R1 had lost the control over it and hit against a tree on the road side. Due to the impact of the hit, both the petitioners sustained dangerous / multiple injuries. They were immediately removed to RTRM hospital, Jaffarpur MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page3 of 30 -:4:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar Kalan in PCR Van where their MLCs were prepared.
3 Pursuant to service of the notice, respondents appeared and filed their respective written statements. R1 in its written statement denied the factum and manner of the accident pleading that the accident did occur to save a cow who suddenly came in front of his vehicle It is further pleaded that the claim is excessive, arbitrary and without any justification.
4. A separate written statement was filed by R2 whereby insurance company had denied the negligent driving of the offending vehicle and as such, no liability can be fastened upon it. It is, however, admitted that offending vehicle was insured with it vide policy no.
214600/2002/2431 in the name of R1 valid from 02.09.2003 to 1.09.2004 subject to terms and conditions of the policy issued.
5. On the basis of pleadings of parties, issues were framed on 03/12/2008 in both the petitions with the direction to record the evidence in Dinesh Kumar vs. Hari Shankar bearing no. 800/08 by treating the same as leading case while consolidating the petitions referred to above. Interim award was also passed on the same date.
6. Having heard the rival contentions advanced on behalf of both the sides and after perusing the material including the evidence on record, my issue wise findings are as under. ISSUE NO 1 (in both the petitions) Whether the petitioners Dinesh Kumar and Samunder Singh received injuries in motor vehicle accident dated 07.03.04 due to to rash and negligent driving of vehicle no. DL 1YA 0431 driven by R1 and insured with R2 and due to this accident the petitioner Dinesh MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page4 of 30 -:5:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar Kumar received 90% permanent disability and petitioner Samunder Singh received less than 40% disability as claimed in the petitions?
.....OPP
7. Sh Dinesh Kumar , petitioner in petition no. 800/08 and Sh Samunder Singh, petitioner in petition no. 798/08/07 in their respective affidavits Ex PW1/A and Ex PW 2/A have reiterated the facts as mentioned in para 2 of the award. No doubt PW1 and PW2 were cross examined on behalf of respondents but nothing adverse material came out during their cross examination so as to discredit the version given on record by them regarding the manner in which the offending vehicle was being driven. Moreover, they were the natural eye witnesses being the injured of the accident and thus, their statements have to be relied upon.
8. The accident had taken place on 07/03/2004 at about 06.40 p.m. The FIR Ex.PB bearing no. 131/04 was registered on the same very date. It is well settled law that in a case of accident claim, the claimant is not required to prove his case to the hilt. In the present case R1 was the best persons to state as to why he had been Challanned vide charge sheet Ex.PA to face the trial. Site plan Ex. PC showing the manner of the accident. Mechanical Inspection report of the offending vehicle is Ex.PF. Arrest memo Ex. PK was prepared by the investigation officer vide which R1 was arrested. These documents are sufficient to establish the factum of the accident.
9. Apart from that, it is relevant to mention that the R1 being the accused of the criminal case had pleaded guilty on 21.03.2007 by making the statement Ex.PM. Vide order Ex. PL Sh. Sanjeev Kumar, the then MM, New Delhi held him guilty u/s 279 IPC and convicted MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page5 of 30 -:6:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar accordingly. He was sentenced to pay a fine of Rs.1000/ while compounding the offence u/s 338 IPC. In S Anand vs. KV Ali 1994, ACJ, 786 (AP) it was held that where the driver had pleaded guilty in the criminal case, the petitioner need not to prove by leading further evidence that the driver was negligent.
10. 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 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."
11 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) 12 Having regards to these facts and circumstances, I am of the opinion that petitioners have been able to establish that accident did take place due to negligent driving of the offending vehicle on the given date, time and place.
13 Issue No.1 is decided in favor of the petitioners in both the petitions accordingly.
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Dinesh Kumar vs. Hari Shanakar
Samunder Singh vs. Hari Shankar
ISSUE NO 2
If issue no.1 is proved in affirmative whether petitioners are entitled for any compensation, if yes, from whom and to what amount? .....OPP
14. As issue no.1 is decided in favor of the petitioners in affirmative and hence, petitioners are entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
15. 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.
16. 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: "Broadly speaking, while fixing the 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 nonpecuniary damages are those which are MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page7 of 30 -:8:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar 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, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
17. 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.
18. I shall take this issue petition wise.
Petition No 800/08/07 Titled as Dinesh Kumar vs. Hari Shankar.
(a) MEDICINES
AND TREATMENT
20. Petitioner in his affidavit Ex PW1/A had averred that after the accident he along with his coinjured Samunder Singh was removed to RTRM Hospital Jaffarpur, Najafgarh, New Delhi where his MLC bearing no. 221/04 Ex. PD was prepared. It is further averred that due to his serious condition, he was immediately shifted to Indian Spinal Injuries Centre, Vasant Kunj MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page8 of 30 -:9:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar for further management. He remained admitted there during the period 07.03.2004 to 07.04.2004 ( 30 days).
PW 5 Sh. Rakesh Kumar, Medical record Incharge, Indian Spinal Injuries Centre hospital proved the discharge summary of the patient as Ex. PW 5/A. He further proved the medical bills amounting to Rs.2,40,995/ received from the patient as Ex. PW 5/B. During the hospitalization, 6 operations were carried out which is apparent from the medical treatment record. Being dissatisfied with the treatment of the aforesaid hospital the petitioner was taken to Apollo Hospital where he took the treatment as indoor patient during the period 16.04.2004 to 19.04.2004. Discharge summary stands proved Ex. PW 1/3.
21. It is specifically averred that he was admitted in G.B. Pant Hospital for further treatment during the period 20.04.2004 to 01.05.2004. During his admission, Intravenous Regional Anesthesia was given on his left forearm twice. PW 3 Surender Kumar Statistical Assistant G.B. Pant Hospital proved the entire medical treatment record running into 28 pages as Ex. PW 3/A ( collectively). He also deposed about the already exhibited documents Ex. PW 1/4, Ex. PW 1/8, Ex. PW 1/9 and Ex. PW 1/10 relating to the hospital. Discharge summary is Ex. PW 1/4.
22. He also took the treatment from AIIMS during the period 20.06.2004 to 07.07.2004. During his admission, neurotization of nerves were done and his chest was operated upon. PW 4 Sh. Shankar Prasad, Medical Record Technician AIIMS proved the treatment record containing 38 pages as Ex. PW 4/A (Collectively). He deposed about the already exhibited documents Ex. PW 1/5(discharge summary), Ex. PW 1/11 to Ex. PW 1/14. He further deposed about the receipts MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page9 of 30 -:10:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar dated 17.06.2004 of Rs.10,000/ and receipt dated 06.07.2004 of Rs.19,200/ relating to the hospital. He also proved some more receipts as Ex. PW 4/B and Ex. PW 4/C.
23. It is also averred that petitioner remained admitted in Krishna Hospital and Research Centre, Haldwani from 22.04.2005 to 26.04.2005 where his total hip was replaced by Dr. P.S Maini and Dr. Naveen Talwar.
24. It is averred that in an accident, he had sustained multiple injuries with left brachial plexus, fracture dislocation of left hip & right ankle, pelvis fracture, head injury, fracture shaft humerus left, fracture of left hemimandible, fracture of both nasal bones, fracture of left clavicle, fracture left scapula, injury on face and teeth were also broken. During the course of hospitalization, several tests and Xrays were conducted. After the prolonged treatment, he was discharged. He had spent a huge amount on his treatment. The medical bills are proved Ex. PW 1/29 ( 360 medical bills collectively).
25. PW 8 Kuldeep Singh, Junior Supervisor, Apollo Hospital proved the computerized print of bill of Dinesh as PW 8/A. Receipt regarding advance payment of Rs.10,000/ is Ex. PW 8/B. A sum of Rs.3288/ was refunded to the patient out of the said advance amount.
26. Perusal of record, it reveals that petitioner did take place on record the bills of his treatment amounting to Rs.5,03,135/ . He must have spent over and above the amount of Medical bills proved as per the nature of injuries sustained in an accident but I award a sum of Rs.5,03,135/ towards medicines and treatment against the bills actually proved.
(b) FOR FUTURE MEDICAL TREAT MENT
27. PW 13 Dr. Naveen Talwar , Delhi Osteoporsis Foundatino & Orthopedic Clinic, Zor MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page10 of 30 -:11:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar Bagh, N. Delhi deposed about the total hip replacement of Dinesh Kumar. He proved the medical bills amounting to Rs.74,914/ being forming part of Ex. PW 1/29 (already exhibited). He categorically stated that the life of the artificial hip is approximately 1520years. Future estimate of the implant of artificial hip would be Rs.2,00,000/ in each case. It is specifically averred by the petitioner that the cost of two total artificial hips be also taken into account while passing the final award. I do not find any reason to disbelieve the testimony of PW 13 Dr. Naveen Talwar being an independent witness as nothing contrary has been shown or proved on record. It would be difficult to hold that with future medical expenses which are required to be incurred on a victim, a fresh award could be passed. For such medical treatment, the court has to arrive at a reasonable estimate on the basis of evidence brought on record. In the present case, it is evident that for replacing artificial hips, the petitioner would be required to have some sort of operation to change the artificial hips after every 1520 years. I award a sum of Rs.2,00,000/ i.e. Rs. 80,000/ already spent plus Rs.1,20,000/ as compensation for future expenses for purchase and change of artificial hip after relying upon the judgment of Hon'ble Supreme Court in Nagappa vs. Gurudayal Singh & Ors in Appeal (Civil) no. 7989 of 2002, their Lordships were pleased to make the following observations : 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, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page11 of 30 -:12:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar would be required to have some sort of operation and also change the artificial leg. At t hat time, the estimated expenses for this were Rs.18000/ and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally it is true that the said amount is required to be properly invested on longterm basis so that recurring medical expenses could be met. This principle is established in General Manager, Kerala State Road Transport Corporation. Trivandrum vs. Susamma Thomas (Mrs.) and others[(1994) 2 SCC 176].
The Oriental Insurance Co. Ltd. vs. Jagdish Kumar & Ors MAC. App. no. 100/2010 decided on 12/09/2011 (DHC) is relied upon.
28. Now the question remains to be decided with regard the 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.
29. Before proceedings further, let me quote couple of relevant judgments:
In 2012 ACJ 583(SC)titled 'Mohan Soni v/s Ram Avtar Tomar & Ors.', their lordships were pleased to make the following observations:
"The loss of one of the legs either to the marginal farmer or the cycle rickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page12 of 30 -:13:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of any of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller".
30. In Pati Ram Vs. Kushal Pal Singh reported in 2010 ACJ 1481 it has been held that ; Quantum - Injury Leg Amputation of both legs resulting in permanent disability of 85 % in relation to left lower limb and 70 per cent in relation to right lower limb Tribunal assessed loss of earning capacity at 85 per cent and taking income on the basis of minimum wages awarded Rs 5,59,062 towards loss of income due to permanent disability , Rs 10,000/ towards medical expenses , Rs 15,000/ conveyance and speical diet and Rs 1,00,000/ for pain and suffering Appellate court fixed loss of earning capacity at 100 per cent and observing that minimum wages is not akin to future prospects computed loss of income due to permanent disability at Rs 9,86, 580/ plus awarded Rs 1,08,000/ towards conveyance , Rs 1,50,000/ towards pain and suffering Rs 1,00,000/ towards loss of amenities and Rs 50,000/ towards disfiguration Award enhanced from Rs 6,84,062 to Rs 13,94,580/.
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 pleased to make following MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page13 of 30 -:14:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar 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 the head of loss of future earning capacity, taking note of the reduced earning capacity."
(c) LOSS OF INCOME ON ACCOUNT OF DISABILITY : 31 PW1 during the course of his deposition had stated that he was a commercial driver
by profession and used to drive Taxi and having age of 29 years. He used to earn Rs.6000/ per MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page14 of 30 -:15:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar month. As there is no corroborative documentary evidence with regard to his earning therefore, the regard is to be had to the minimum wages of a skilled person as he was having the D/L Ex. PW 1/30. The accident had taken place on 07/03/2004 and minimum wages of skilled person were Rs.3286.90/ as on 01.02.2004. It is stated that due to the injuries sustained in an accident his both left limb upper and lower have been paralysed and his total hip replacement has been done thus, he became unemployed being permanent disabled person. He is not in a position to perform the work of a driver. It is further argued that had he been not met with an accident then he must have started earning Rs.15,000/ per month 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.3286.90/ + 30% which comes to Rs. 4272.97/ (Rs.3286.90/ +986.07).
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 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.
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32 Besides this, petitioner has proved a disability certificate Ex. PW1/1 by examining
Dr. R.K. Wadhwa, CMO, Safdarjung Hospital, New Delhi. According to Doctor, petitioner was a case of permanent physical impairment in relation to his left upper and left lower limb with 90% permanent disability. Due to permanent disability the patient would be unable to run or climb stairs or drive any vehicle and such like other acts. On being crossexamined he stated that there is no possibility of improvement in the condition of the patient. His day to day activities have been affected as he was a driver by profession at the time of accident and hence, his disability is total.
33 As regards the age of the petitioner is concerned, the petitioner has relied upon the D/L Ex. PW 1/30 wherein his date of birth finds mentioned as 01/05/1974. If the age of the petitioner is calculated on that basis then it came to be less than 30 years. An operative multiplier shall be '17' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor wherein the disability has been stated as 90% and hence, compensation is granted Rs. 4272.97X90X17X12 /100 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 MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page16 of 30 -:17:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar 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 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. 34 I, therefore, award a sum of Rs.7,84,517.29/ rounded off to Rs. 7,84,517/ 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: 35 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.
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36. In the present case, it is apparent from the medical record proved by petitioner that he had sustained multiple injuries with left brachial plexus, fracture dislocation of left hip & right ankle, pelvis fracture, head injury, fracture shaft humerus left, fracture of left hemimandible, fracture of both nasal bones, fracture of left clavicle, fracture left scapula, injury on face and teeth were also broken. 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.
37. To compensate the petitioner under this head, I award a sum of Rs.50,000/ to the petitioner for pain and suffering.
e) CONVEYANCE & SPECIAL DIET :
38. PW1 during the course of his deposition has failed to depose the amount spent by him on conveyance and special diet , 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. He must have required to take special diet to recover from the injuries sustained by him . I, therefore, award a sum of Rs 25,000/ to the petitioner towards Conveyance and special diet.
f) CLAIM OF ATTENDANT CHARGES
39. The petitioner examined PW 7 Vinod Kumar who deposed that he worked as an attendant with the petitioner for 18 months from 1st week of May 2004 till Diwali of next year.
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He further deposed that he used to pay Rs.25,000/ per month in cash and has paid a total sums of Rs.45,000/. Following the ratio of the judgment Gulab Nabi Bhat (SUPRA), a sum of Rs. 45,000/ is awarded to the petitioner to the loss of attendant charges.
40. Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
1 Medicine and treatment : Rs 5,03,135/ 2 Loss of earning on account of disability : Rs 7,84,517/
3. Pain and Suffering : Rs. 50,000/ 4 Special Diet & Conveyance : Rs. 25,000/ 5 For future medical treatment : Rs 2,00,000/ 6 Attendant Charges : Rs. 45,000/ 7 Loss of amenities : Rs 25,000/ ___________________________________________________________ Total : Rs. 16,32,652/ (Rupees Sixteen lacs, thirty two thousand, six hundred fifty two only) It includes the amount of interim award.
PETITION NO 798/08/07 TITLED AS Samunder Singh vs. Hari Shankar& Ors.
(a) MEDICINES
AND TREATMENT
41. Petitioner in his affidavit Ex PW2/A had averred that after the accident he along with his coinjured Dinesh Kumar was removed to RTRM Hospital Jaffarpur, Najafgarh, New Delhi where his MLC bearing no. 222/04 Ex. PE was prepared. It is further averred that due to MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page19 of 30 -:20:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar his serious condition he was immediately shifted to Indian Spinal Injuries Centre, Vasant Kunj for further management. He remained admitted there during the period 07.03.2004 to 24.03.2004 ( 18 days). Two operations were carried out during his hospitalization.
42. He was taken to Sama Nursing Home, 8 Siri Fort Road, New Delhi for further management and he remained admitted there during the period 27.04.2006 to 01.05.2006 where his total hip was replaced by fixing metal hip by Dr. P.S Maini. PW 5 Sh. Rakesh Kumar, Medical record Incharge, Indian Spinal Injuries Centre hospital proved the discharge summary of the patient as Ex. PW 5/C. He further proved the medical bills amounting to Rs.1,05,523/ received from the patient as Ex. PW 5/D. PW 10 Om Prakash Kanojia Receptionist & Dealing with the Bills from Shama Nursing Home deposed about the treatment of Samunder Singh. He proved the medical record including discharge summary Ex. PW 10/A(20 pages collectively). He further deposed about the bill dated 01.05.2006 which are proved Ex. PW 10/B and Ex. PW 10/C.
43. It is averred that in an accident, he had sustained multiple injuries with fracture dislocation of left hip & fracture of left humerus upper 1/4 t. Orif of left humerus left Acetabulum was done by using plates and screws under GA.. He had spent a huge amount on his treatment. The medical bills are proved Ex. PW 2/3 ( 45 medical bills collectively).
44. Perusal of record, it reveals that petitioner did take place on record the bills of his treatment amounting to Rs.2,52,150/ . He must have spent over and above the amount of Medical bills proved as per the nature of injuries sustained in an accident but I award a sum of Rs.2,52,150/ towards medicines and treatment against the bills actually proved.
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(b) FOR FUTURE MEDICAL TREATMENT
45. PW 13 Dr. Naveen Talwar , Delhi Osteoporsis Foundatino & Orthopedic Clinic, Zor Bagh, N. Delhi deposed about the total hip replacement of Samunder Singh. He deposed that a sum of Rs.53,706/ was received from the patient Samunder Singh towards hospitalization and Rs.80,000/ for the cost proved of artificial hip. The medical bills is already exhibited Ex. PW 2/3). He categorically stated that the life of the artificial hip is approximately 1520years. Future estimate of the implant of artificial hip would be Rs.2,00,000/ in each case. It is specifically averred by the petitioner that the cost of two total artificial hips be also taken into account while passing the final award. I do not find any reason to disbelieve the testimony of PW 13 Dr. Naveen Talwar being an independent witness as nothing contrary has been shown or proved on record. It would be difficult to hold that with future medical expenses which are required to be incurred on a victim, a fresh award could be passed. For such medical treatment, the court has to arrive at a reasonable estimate on the basis of evidence brought on record. In the present case, it is evident that for replacing artificial hips, the petitioner would be required to have some sort of operation to change the artificial hips after every 20 years. I award a sum of Rs.2,00,000/ ( Rupees Two lakhs only ). Rs. 80,000/ already paid plus Rs.1,20,000/ as compensation for future expenses for purchase and change of artificial hip after relying upon the judgment of Hon'ble Supreme Court in Nagappa vs. Gurudayal Singh & Ors in Appeal (Civil) no. 7989 of 2002, their Lordships were pleased to make the following observations : 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.
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However, for such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At t hat time, the estimated expenses for this were Rs.18000/ and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally it is true that the said amount is required to be properly invested on longterm basis so that recurring medical expenses could be met. This principle is established in General Manager, Kerala State Road Transport Corporation. Trivandrum vs. Susamma Thomas (Mrs.) and others[(1994) 2 SCC 176].
46. Now the question remains to be decided with regard the 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.
(c) LOSS OF INCOME ON ACCOUNT OF DISABILITY
47. PW 2 during the course of deposition had stated that he was a electrician by
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profession and his earning was Rs.6000/ per month. As there is no corroborative evidence with regard to his earning, therefore, the regard is to be had on minimum wages of unskilled person i.e. Rs.2862.90 as on 01.02.2004. It is stated that due to the injuries sustained in an accident he had sustained multiple injuries with fracture dislocation of left hip & fracture of left humerus upper 1/4. Orif of left humerus left Acetabulum was done by using plates and screws under GA thus, he became unemployed being permanent disabled person. He is not in a position to perform the work of an electrician effectively. It is further argued that had he been not met with an accident then he must have started earning Rs.15,000/ per month 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.2862.90/ + 30% which comes to Rs. 3721.77/ (Rs.2862.90/ +858.87). Relevant paragraph 19 of the judgment Gulam Nabi vs. Md. Arman Ali & Ors. (SUPRA) is relied upon.
48. Besides this, petitioner has proved a disability certificate Ex. PW2/1 by examining Dr. Rupam Meena, Ortho Specialist, RTRM Hospital, New Delhi. According to Doctor, petitioner was having fracture dislocation of left hip with injury left shoulder. After treatment total hip was replaced. He had suffered the permanent disability of less than 40% in relation to left hip and left shoulder. He categorically stated the exact percentage of the disability is 35.55 % in relation to left lower limb and left upper limb which is nonprogressive. He proved the relevant record concerning the disability certificate Ex. PW 12/A. He further stated the patient being electrician would not be able to perform his duty effectively. He cannot climb and cannot sit with crosslegs, MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page23 of 30 -:24:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar playing, swimming and squatting. On being crossexamined he stated that there is no possibility of improvement in the condition of the patient. His day to day activities have been affected as he was a electrician by profession at the time of accident. Doctor further stated that even after the replacement of hip, he would not be in a position to walk or perform daily chores perfectly and hence, his disability is total.
49 As regards the age of the petitioner is concerned, the petitioner has relied upon the Election ICard Ex. PW 2/4wherein his age is mentioned 40 years as on 01/01/2008. If the age of the petitioner is calculated on that basis then it came to be 36 years plus. An operative multiplier shall be '16' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121.
Considering the disability certificate in the light of high cost of living, ends of justice would be met, if the disability of the petitioner is taken as 35 % and hence, compensation is granted as Rs. 3721.77X35X16X12 /100 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) .
50. I, therefore, award a sum of Rs.2,501,02.94/ rounded off to Rs.2,50,103/ 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 & Mohan Soni Vs. Ram Avtar & Ors 2012 ACJ 382 (SC) are also relied upon.
d) PAIN & SUFFERING:
51 Pain and suffering is covered under non pecuniary damages. To calculate the
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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.
52. In the present case, it is apparent from the medical record proved by petitioner that he had sustained multiple injuries with fracture dislocation of left hip & fracture of left humerus upper 1/4t. Orif of left humerus left Acetabulum was done by using plates and screws under GA. 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.
53. To compensate the petitioner under this head, I award a sum of Rs.50,000/ to the petitioner for pain and suffering.
e) CONVEYANCE & SPECIAL DIET :
54. PW1 during the course of his deposition has failed to depose the amount spent by him on conveyance and special diet , 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. He must have required to take special diet to recover from the injuries sustained by him. I, therefore, award a sum of Rs 25000/ to the petitioner towards Conveyance and special diet.
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(f) CLAIM OF ATTENDANT CHARGES
55. The petitioner examined PW 11 Narender Kumar who deposed that he worked as an attendant with the petitioner initially for 6 months w.e.f April 2004 till end of September 2004 at the monthly salary of Rs.2700/ per month. Secondly; he had again rendered the services to the petitioner as an attendant during 1st week of May 2006 till the end of 2006 at the salary of Rs.3000/per month. He further deposed that he received a sum of Rs.40,000/ in cash from the petitioner. Following the ratio of the judgment Gulab Nabi Bhat (SUPRA), a sum of Rs.40,000/ is awarded to the petitioner to the loss of attendant charges.
56. Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
1 Medicine and treatment : Rs 2,40,995/ 2 Loss of earning on account of disability : Rs. 2,50,103/
3. Future Charges plus already paid towards hip replacement : Rs. 2,00,000/
4. Pain and Suffering : Rs. 50,000/
5. Special Diet & Conveyance : Rs. 25,000/
6. Attendant Charges : Rs. 40,000/
7. Loss of amenities : Rs 25,000/ ___________________________________________________________ Total : Rs. 8,31,098/ (Rupees Eight lacs, thirty one thousand and ninety eight only) It includes the amount of interim award.
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INTEREST IN BOTH THE PETITIONS
57. Both the petitions were filed on 16.11.2007. There is nothing on record to withhold the interest. Both the petitioners are awarded interest at the rate of 7.5 % from the date of filing the petitions till the realization except the amount of Rs.1,20,000/ out of the awarded amount.
LIABLITITY IN BOTH THE PETITIONS
58. No evidence has been led on behalf of the respondents including the insurance company. Admittedly the offending vehicle was driven and owned by R 1 which was insured with the R2. R1 is the principle tort feasor whereas R2 is vicariously liable. Both the respondents are held responsible jointly and severely to pay the awarded amount. Since the vehicle was insured with R2 at the time of accident therefore, it shall pay the awarded amount.
59. Issue No.2 is decided in favor of the petitioners accordingly. ISSUE NO. 3
Relief
60. In petition no. 800/08/07 titled as Dinesh Kumar vs. Hari Shankar & anr. a sum of Rs. 16,32,652/(Rupees Sixteen lacs, thirty two thousand, six hundred fifty two only) with interest is awarded in favour of the petitioner and against the respondents inclusive the amount of interim award.( Interest shall be excluded on the amount of Rs.1,20,000/).
61. In petition no. 798/08/07 titled as Samunder Singh vs. Hari Shankar & anr. an amount of Rs.8,31,098/ (Rupees Eight lacs, thirty one thousand and ninety eight only) MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page27 of 30 -:28:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar with interest is awarded in favour of the petitioner and against the respondents inclusive the amount of interim award. ( Interest shall be excluded on the amount of Rs.1,20,000/). 62 The awarded amount be deposited by R2 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 1,07,652/ with interest to the petitioner( in petition no. 800/08/07 titled as Dinesh Kumar vs. Hari Shankar & anr. ). by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in the following manner:
a) Rs.2 lac in his name for a period of 1 year. b) Rs. 2 lacs in his name for a period of 3 years. c) Rs. 3 lacs in his name for a period of 5 years. d) Rs. 4 lacs in his name for a period of 6 years. d) Rs. 4 lacs in his name for a period of 7 years. 63. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 1,06,098/ with interest to the petitioner (in petition no. 798/08/07 titled as
Samunder Singh vs. Hari Shankar & anr. by transferring the same to his Saving Bank Account after keeping in a fixed deposit in the following manner:
a) Rs 1 lac in his name for a period of 1 year.
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b) Rs 2 lacs in his name for a period of 2 years.
c) Rs.2 lacs in his name for a period of 3 years.
d) Rs.2 lacs in his name for a period of 5 years.
64. The interest on the aforesaid fixed deposits shall be paid monthly by
automatic credit of interest in the respective Savings Account of the beneficiaries.
65. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Card to the beneficiaries to facilitate identity.
66. No cheque book shall be issued to the beneficiaries without the permission of this Court.
67. 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 beneficiaries 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 beneficiaries.
68. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
69. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience.
70. The beneficiaries shall furnish all the relevant documents for opening of the MACP No 800/08/07 Dinesh Kumar vs. Hari Shankar MACP no. 798/08/07 Samunder Singh vs. Hari Shankar Page29 of 30 -:30:- Dinesh Kumar vs. Hari Shanakar Samunder Singh vs. Hari Shankar Saving Bank Account and Fixed Deposit Account.
71. R2 shall inform the petitioners through registered post that the cheque of the awarded amount are being deposited so as to facilitate them to collect their respective cheque.
72. Copy of the award be supplied to both the parties at free of cost.
73. Attested copy of the judgment shall be kept in the connected matter.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 31/01/2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
ALL PAGES SIGNED
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