Delhi District Court
Master Asav Kumar @ Monu vs Parveen Kumar (Driver) on 17 November, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNAL
NORTH-EAST DISTRICT: KKD COURTS : DELHI
MACT No. 386/10
Unique ID no. 02402C0334252010
MASTER ASAV KUMAR @ MONU
S/o Sh. Pardeep Kumar
R/o C-12/19, Meet Nagar near
Saboli Phatak, Delhi 110 093 ......Petitioner
Versus
1. PARVEEN KUMAR (DRIVER)
S/o Sh. Laxman Singh,
R/o Adarsh Nagar, Distt. Meerut, (UP)
At prsent: C/o H. NO. 30, Idrishpur, Barout, Bagpat 250611
2. RAM KUMAR (OWNER)
S/o Sh. Girdhari Lal
R/o H. No. 30, Idrishpur, Barout,
Baghpat 250611 UP.
3. The Oriental Insurance Co. Ltd. (Ins. Co.)
I-25/27, Asaf Ali Road,
New Delhi. .......Respondents
Through :
Mr. V. K. Sharma Advocate for petitioner.
Mr. Upender Kumar and Neeru Garg, Advocate for respondent
1. Date of Institution of claim petition :30.11.2010
2. Date of Decision :17.11.2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 1/11 AWARD
1. The petitioner being injured filed the present claim petition seeking compensation under the MV Act. It is the case of the petitioner that on 23.10.2010 at about 07: 30 a.m., the injured was sitting as a pillion rider on motor cycle no. DL S-P 4565, which was being driven by Mr. Vikas Kumar who is maternal uncle of the petitioner. When the motor cycle passed through village Biral , suddenly a truck bearing no. UP 17 T 0557 which was being driven by the respondent no. 1 in a rash and negligent manner, came from behind. The respondent no. 1 instead of driving his truck on his side had took the truck towards the extreme left side of the road where the motor cycle was going ahead of him and struck his truck with the motor cycle with a great force. As a result of which motorcycle had fallen down on the road alongwith petitioiner and his maternal uncle and they sustained multiple injuries on their bodes. Petitioner was taken to Jeevan Jyoti Hospital. PS Ramla , Distt. Barout, UP registered an FIR No. 178/10 under Sections 279/337/427 IPC. It is further stated that injured was a student.
2. Summons of the petition were issued to the respondents. Vide order dated 23.11.2011 respondents no. 1 & 2 were proceeded ex-parte. WS was also filed on behalf of respondent no. 3 stating that vehicle bearing no. UP 17 T 0557 was insured with the respondent no. 3 vide policy no. 271701/31/2010/6786 for the period 14.01.2010 to 13.01.2011.
3. After completion of the pleadings, following issues were framed :
1. Whether the petitioner Master Asav Kumar @ Monu, son of Sh.
Pradeep Kumar sustained injuries in motor accident caused by rash and negligent driving of vehicle no. UP 17 T 0557 by respondent no. 1 on 23.10.2010 at about 7:30 a.m., at Village Biral, within the jurisdiction of Police Station Ramla, District Baraut, Baghpat U.P., within the jurisdiction of Police Station Ramla, District Barut? OPP MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 2/11
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom?
3. Relief
4. Petitioner has examined Sh. Pardeep Kumar as PW1 and has tendered his affidavit Ex. PW 1/X and relied upon the documents i.e certified copies of the criminal case record Ex. PX, Discharge Slips and OPD Ex. PW 1/1, Details of the bills and the bills Ex. PW 1/ 2 and school identity card of the petitioner Ex. PW 1/3 treatment record Ex. PW 1/1, Dr. Ajit Kumar Roy, Medical Officer, Jeevan Jyoti Clinic & Hospital, GTB Chowk, Dilshad Garden, examined as PW 2 and Sh. Asav Kumar has examined himself as PW 3, Dr. Neeraj Garg, Orthopaedic Surgeon is examined as PW 4
5. I have heard the counsels for both the parties and gone through the entire evidence on record carefully.
6. My issuewise findings are as below :
ISSUE NO.1 Whether the petitioner Master Asav Kumar @ Monu, son of Sh. Pradeep Kumar sustained injuries in motor accident caused by rash and negligent driving of vehicle no. UP 17 T 0557 by respondent no. 1 on 23.10.2010 at about 7:30 a.m., at Village Biral, within the jurisdiction of Police Station Ramla, District Baraut, Baghpat U.P., within the jurisdiction of Police Station Ramla, District Barut? OPP
7. PW1 i.e. father of the injured has filed his chief affidavit reiterating the facts mentioned in the petition. FIR No. 178/10 u/sec 279/337 IPC was also registered at PS Ramla, Distt. Baraut, Baghpat, UP in this respect. It is further stated that injured was a student.
8. During cross examination PW 1 has deposed that he has already filed the MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 3/11 photocopy of ration card on record in which the name of the petitioner has been mentioned. It is further deposed that he has also filed the school identity card of his son which is Ex. PW 1/3 and has not filed any documentary proof of age of his child. It is further deposed that at the time of the accident his injured child was a student of class 11th in St. Marks School, Harsh Vihar, Delhi and he was a student of Arts stream. It is further deposed that his son was not doing any job anywhere and he has been a brilliant student and his son has left studies after the accident. It is further deposed that he has filed the medical treatment record of his child regarding amputation of his leg.
9. PW 3 injured/petitioner deposed that on 23.10.2010 he was travelling from gram bharsi to Delhi alongwith his maternal uncle Vikas on motor cycle when a truck bearing no. UP 17T 0557 hit him from the back side. It is further deposed that after the impact of the accident he fell on the left side on the road and his maternal uncle took him to the Jeevan Jyoti Hospital, near GTB Shahadara.
10. There is no evidence brought on record by any of the respondents to disprove the facts as stated by the PW 3. The driver of offending vehicle has not even entered the witness box to state as to how the accident occurred. In a judgment reported as National Insurance Company Ltd. Vs. Pushpa Rana and other, 2009 ACJ 287 the Hon'ble High Court of Delhi has held that certified copies of criminal court, such as FIR, recovery memo and mechanical inspection report of vehicle are sufficient proof to reach the conclusion that driver was negligent. Proceedings under M. V. Act are not akin to proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
11.Therefore , from the statements of the PW 1 and in view of the record of the MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/11 criminal case, it is proved that the injured sustained grievous injuries in the accident which occurred on 23.10.2010 due to rash and negligent driving of offending vehicle bearing no. UP 17T 0557 driven by its driver i.e Respondent no. 1. This issue is thus, decided in favour of petitioner and against the respondents.
12.ISSUE NO. 2Whether petitioner is entitled to compensation? If so, to what amount and from whom?
13.PW 2 Dr. Ajit Kumr Roy, Medical Officer, Jeevan Jyoti Clinic and Hospital, proved the treatment record of patient Monu as Ex. PW 2/A. He also proved the original discharge card Ex. PW 1/1 of the patient which was prepared by RMO, Dr. Vijay Kashyap whose signatures and writing were identified by PW 2.
14.PW 3 further deposed that he was medically examined there and his left foot was amputated and thereafter, due to certain complications his leg was further amputated below knee. It is further deposed that entire medical treatment expenses were borne by his father for about 1-1/2 years. It is further deposed that at the time of the accident he was a student of 11 th standard and he could not attend his school for the entire period of his treatment. It is further deposed that at present an artifical limb has been planted which costs Rs. 15000/- after every three months. It is further deposed that approximately Rs. 2.5 lacs have been spent by his father on his treatment which includes special diet, medical treatment and attendant charges alongwith conveyance etc. It is further deposed that all the bills regarding his medical treatment are already on record and have been duly exhibited by PW1 and PW 2. During cross examination PW 3 has deposed that there is no documentary MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 5/11 proof on record for replacement of the artificial limb after every three months neither there is advise of the doctor for replacement after three months.
15. Dr. Neeraj Garg, Orthopadic Surgeon , Prabhat Troma Center , Garh Road, Meerut, UP is examined as PW 4, who deposed that the patient Asav Kumar had visited his clinic on 05.05.2011 who had the injury in the left leg, ankle and foot with syemes (the absence of fore foot) amputation and with badly lacerated skin with Non Healing Discharging Sinus with neuropathic foot (Sense less foot) with mental depression. It is further deposed that he assessed his injury and found that this limb was not going to be a functional limb because it was a neuropathic limb and due to repeated infection it was not in survival condition and thus, he advised him to go for below knee amputation on injured side and patient informed him that he has received the same opinion from different hospitals of Delhi also and he performed his surgery for the amputation below knee left leg on 07.05.2011. It is further deposed that he also advised the use of artifical limbs ( below knee prothesses) and the person from the hospital had also brought the medical treatment record and the same was proved as Ex. PW 4/1 .
16. During cross examination he deposed that the patient cannot be restored to 100% normality with artificial limb and artificial limbs are available at various prices depending upon the quality and manufacturer and he cannot say the exact price of the artificial limb. It is further deposed that patient has to keep on changing the artificial limb depending on the wear and tear.
17.During cross examination PW 1 deposed that he has no documentary proof to show that he has spent huge amount on the treatment of his injured son. It is further deposed that at the time of accident he was the student of 11th class but he could not appear in the examination and had suffered one complete year of MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 6/11 academic qualification and he become juniors amongst his fellows. It is further deposed that he has not filed any document on record to show that his son had suffered loss of education due to the accident. The accident occurred in the year 2010. As per Xth class certificate, Ex.PW 3/X, the injured passed High School Examination in the year 2013 and XIth class in the year 2013-2014 and thus, he could not have been a student of XIth class on the date of accident. Ex. PW 3/X shows that the date of birth of injured is 26.11.1994 and the injured was thus, 15 years of age on the date of accident. As he has passed his Xth class examination, in year 2013, i.e when he was 19 years of age, it shows that his study was disrupted due to the injuries sustained in the accident.
18. Injured has suffered grievous injuries and study of injured was effected as he had received grievous injuries and suffered amputation of his left lower limb. He has suffered loss of one complete academic year. . Therefore, he is entitled to the loss of study. There is no fixed formula to calculate the amount of compensation for loss of study but it is deemed fit that Rs. 1,00,000/- would be just compensation for loss of study for an academic year. Petitioner has stated that he incurred and spent huge amount for his treatment, medical bills of Rs. 1,26,133/- has been filed in support of his claim and hence, this claim of Rs. 1,26,133/- is granted.
19.Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble HIgh Court held that a victim cannot be deprived of MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/11 compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered grievous injuries and also amputation it is deemed fit that a lump sum of Rs. 50,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery.
20.As per the petition, the injured was aged 16 years on the date of accident. As per the MLC , he was aged 15 years. As per the disability certificate,Injured suffered 62% of the disability of left lower limb. Due to the disability and amputation, left lower limb is rendered almost non-functional. Ld. Counsel for petitioner has argued that marriage prospects of the injured have totally been ruined due to the disability. Asav Kumar would not be able to enjoy his life like any other of child of his age. Also the injured would never be able to apply for certain Govt. jobs such as in police deptt. or armed forces etc. He would not be able to drive a two wheeler and a four wheeler during his life time. As an important limb is rendered non functional, I do not wish to reduce the percentage of disability qua the whole body. As the injured was a child of the age of 15 years, on the date of accident and is a matriculate as per Ex. PW 3/X, the minimum wages of a matriculate i.e Rs. 5278 per month considered for the purpose of assessing future loss of income.
In the judgment Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 it has been held that multiplier is to be used with reference to the age of the deceased. It was further held that 50% of the deduction is to be made in case of bachelor. On the aspect of future prospects, it was also held that in case of self employed persons also, if the deceased is below 40 years, MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 8/11 there must be addition of 50% to the actual income of the deceased while computing future prospects.
Accordingly, the loss of future income due to disability is calculated as below:
Therefore, her future loss of income is :
Rs. 5278/- X12X 18 = Rs.11,40,048/-
Rs.11,40,048/- + Rs. 5,70,024 (50% Future prospects) = Rs. 17,10,072/- Rs. 17,10,072 X62% = Rs. 10,60,245 (rounded off).
The testimony of PW 4 has also established that the injured would require artificial limb for the rest of his life and the same is required to be changed frequently depending upon the wear and tear. It is deemed fit that a lumpsum of Rs. 3,00,000/- be granted to the injured for the cost of artificial limb which he may require in future.
Accordingly, compensation is calculated as below:
NON-PECUNIARY COMPENSATION Compensation towards pain and suffering Rs. 80,000/- Compensation towards disfiguration Rs. 70,000/- Compensation towards loss of marital prospects Rs. 1,00,000/- Compensation towards enjoyment of life Rs. 50,000/- Total non-pecuniary compensation Rs. 3,00,000/-
PECUNIARY COMPENSATION Loss of future income due to permanent disability Rs. 10,60,245/- Compensation towards special diet Rs. 20,000/-
Compensation towards conveyance Rs. 20,000/-
MACT Case No.386/10 Kiran Bansal
P.O. MACT (NorthEast), Delhi
Page 9/11
Compensation towards salary of attendant Rs. 50,000/-
Medical bills Rs. 1,26,133/-
Cost of artificial limb Rs. 3,00,000/-
Loss of study Rs. 1,00,000/-
Total Rs. 16,76,378/-
Thus, the total compensation amount is Rs. 19,76,378/-.
21. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy of the offending vehicle. Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued for the period 14.01.2010 to 13.01.2011. There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no. 1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
22.Relief Award is passed directing Respondents no. 3, being insurer of the offending vehicle to pay a sum of Rs. 19,76,378/- (including interim compensation, if any) to the petitioner along with interest @ 9% per annum from date of filing of the petition (30.11.2010). Payment is to be made by depositing cross cheque in favour of petitioner in the tribunal. The respondents no. 3 is directed to deposit the award amount along with interest in court within thirty days from today under written intimation to the petitioner. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each MACT Case No.386/10 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 10/11 day default. It is further ordered that 40% of the award amount shall be released to petitioner/injured and the balance shall be kept in FDR in the name of petitioner, in a nationalized bank till he attains majority, with a facility to withdraw monthly interest.
The Bank shall further comply with following directions :-
(a) Withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card of petitioner to facilitate identity.
(b) No cheque book be issued to the petitioner without the permission of the court.
(c) The original fixed deposit receipt shall be retained by the bank in the safe custody. However, the original pass book shall be given to the petitioner along with photocopy of the FDR.
(d) The original fixed deposit receipt shall be handed over to the petitioner on the expiry of the period of the FDR.
(e) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipt without the permission of the court.
(f) The petitioner shall furnish all the relevant documents for opening of the saving bank account and fixed deposit account to the concerned Bank.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (KIRAN BANSAL)
17.11.2015 P.O. MACT(North-East)
KKD Delhi
MACT Case No.386/10 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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MACT Case No.386/10 Kiran Bansal
P.O. MACT (NorthEast), Delhi
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