Delhi District Court
Smt. Anuradha Bhattacharya vs Sh. Satyajeet on 16 December, 2014
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IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.:449/11/08
OLD SUIT NO.201/2008
DATE OF INSTITUTION:22.04.2008
1. Smt. Anuradha Bhattacharya
W/o Sh.Diptimaan Bhattacharya
2. Baby Ananya
D/o Sh.Diptimaan Bhattacharya
3. Smt. Usha Mankotia
All R/o C137, Sector21,
Jalvayu Vihar, Noida, UP .........Petitioner
SUIT NO.:402A/11/08
OLD SUIT NO.240/2008
DATE OF INSTITUTION:13.05.2008
1. Sh.Vijay Rawat
S/o Late Sh.T.P.S. Rawat
2. Dr. Anita Dighe
W/o Sh.Vijay Rawat
Both R/o E223, Jalvayu Vihar
Sector21, Noida. .........Petitioner
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SUIT NO.:448/11/08
OLD SUIT NO.246/2008
DATE OF INSTITUTION:16.05.2008
1. Sh.Gaurav Sabikhi
S/o Late Sh. Vipin Kumar Sabikhi,
R/o H48 B, Sector22,
Noida, Uttar Pradesh. .........Petitioner
Versus
1. Sh. Satyajeet
S/o Late Sh. Amarjeet Singh
R/o 41, Siddharth Enclave,
Maharani Bagh, New Delhi
2. Oriental Insurance Company Ltd.
Through its Manager
A25/26, Oriental House,
Asaf Ali Road, New Delhi110002
3. Sh. Amarjeet Singh
Though his LRs
(a) Sh. Satyajeet
S/o Late Sh. Amarjeet Singh
(b) Mrs. Kunta Sachadeva
W/o Late Sh.Amarjeet Singh
(c) Ms. Mrilani Singh
D/o Late Sh. Amarjeet Singh
(d) Sh.Akshayajeet
S/o Late Sh. Amarjeet Singh
All R/o 41, Siddharth Enclave,
Maharani Bagh, New Delhi ..........Respondents
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Final Arguments heard on : 01.12.2014 Award reserved for : 16.12.2014 Date of Award : 16.12.2014 AWARD
1. Vide this judgment cum award I proceed to decide the petitions bearing no. 448/11/08(Old suit no.246/08), 449/11/08(Old suit no.201/08) and 402A/11/08(Old suit no.240/08) filed by the petitioners U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petitions are that on 24.02.2008 Sh.Gaurav Sabikhi(injured in suit no.448/11/08), Sh.Satyajeet, Sh.Aniruddha Rawat(deceased in suit no.402A/11/08) and Ms.Sneha Kapoor(deceased in suit no.449/11/08) were travelling in car no.DL3CAJ9445 which was being driven by Sh.Satyajeet in rash and negligence manner and the driver was repeatedly told by occupants of the car not to drive the vehicle at a fast speed but he did not pay any attention and when they reached near Art Gallery, round about of India Gate, respondent no.1 could not control the car as a result of which car struck against the footpath and then hit a tree and over turned 23 times due to which the occupants of the car sustained injuries and they were taken to Dr.RML Hospital where Sh.Aniruddha Rawat(deceased in suit 4 no.402A/11/08) and Ms.Sneha Kapoor(deceased in suit no.449/11/08) were declared brought dead.
3. It is stated in the claim petition no.449/11/08 that the deceased Ms.Sneha Kapoor was 20 years of age at the time of accident and she was student nd of B.A.(Hons.) 2 year, Applied Psychology and she was also working as part time worker in Red Bulls Company and was earning a sum of Rs.10000/ per month.
4. It is stated in the claim petition no.402A/11/08 that the deceased Sh.Anirudha Rawat was 21 years of age at the time of accident and he rd was student of B.A. 3 year, Industrial Relations and Personnel Management and German and he has worked in the Red Bull India Pvt. Ltd. in 2006 for one year and then from 01.07.20007 to 10.10.2007 at the monthly salary of Rs.15,000/ per month and thereafter on 10.10.2007 he quit his job to complete his graduation.
5. It is stated in the claim petition no. 448/11/08 that the petitioner Sh.Gaurav Sabikhi was 25 years of age at the time of accident and he was self employed as Interior Designer and was earning a sum of Rs.50,000/ per month.
6. It is stated that the accident took place due to rash and negligent driving of the offending vehicle driven by Sh.Satyajeet/respondent no.1, owned by Sh.Amarjeet Singh and insured with respondent no.2 and as such all 5 the respondents are jointly and severally liable to pay compensation to the petitioners.
7. In suit no.449/11/08 it is prayed that Rs.Ninety Two Lacs alongwith interest @ 18% per annum be awarded as compensation in favour of petitioners against the respondents.
8. In suit no.402A/11/08 it is prayed that Rs.Ninety Eight Lacs alongwith interest @ 18% per annum be awarded as compensation in favour of petitioners against the respondents.
9. In suit no.448/11/08 it is prayed that Rs.Eighty Five Lacs Six Thousand Seven Hundred Sixty Nine alongwith interest @ 18% per annum be awarded as compensation in favour of petitioners against the respondents.
10. Sh.Satyajeet Respondent no.1 and LR of respondent no.3 has filed written statement and has contested the petition on various grounds. It is stated that the accident took place due to one person who all of sudden came running on the road without taking any proper care and caution while the vehicle of respondent no.1 was coming towards the National Art Gallery and in order to save a person who all of a sudden came running on the road respondent no.1 turned the steering of his car towards left side due to which car rammed into the tree. The averments made on merits are denied. It is stated that the vehicle no.3CAJ9445 was insured 6 with the Oriental Insurance Company Ltd. vide policy no.271702/31/2008/2536 valid till 05.07.2008.
11.M/s Skoda Auto India Ltd. was initially impleaded as respondent no.2 in suit no.448/11/08 and respondent no.3 in suit no.449/11/08 and 402A/11/08 and M/s Skoda Auto India Ltd. filed written statement and in para 7 of PO of written statement they have taken objection that the suit is bad for nonjoinder of necessary parties and M/s Skoda Auto India Ltd. has been impleaded just to extort money. An application under order 1 Rule 10 CPC was filed on behalf of M/s Skoda Auto India Ltd. for striking out of its name from array of parties and vide order dated 28.05.2011 the application under order 1 Rule 10 CPC filed on behalf of M/s Skoda Auto India Ltd. was allowed by my Ld.Predecessor and the name of M/s Skoda Auto India Ltd. was deleted from the array of parties.
12. Respondent no.2 the insurance company has filed written statement and has contested the petition on various grounds. The averments made on merits are denied. It is stated that the vehicle no.DL3CAJ9445 was insured with respondent no.2 vide policy no.271702/31/2008/2536 for the period from 06.07.2007 to 05.07.2008. It is denied that respondent no.2 is liable to pay compensation.
13.Vide order dated 30.03.2009 all three cases were consolidated and from the pleading of the parties following consolidated issues were framed in 7 by my Ld.Predecessor:
1.Whether the son of petitioner no.1 in suit no.201 and son of petitioners in suit no.240 sustained fatal injuries and in suit no.
246 the petitioner sustained injuries on his person in the road accident on 24.02.2008 while they were travelling in the Skoda Laura its no.Dl3CAJ9445 was being driven by R1 Satyajeet in rash and negligent manner under the influence of liquor?.OPP.
2.Whether these suits are bad for non joinder and mis joinder of the parties? OPD
3. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
4.Relief.
14. In support of their claim the petitioners examined SI Mukhtiyar Singh as PW1. PW1 stated that on 24.02.2008 he was on emergency duty at PS Tilak Marg and on receipt of DD no.42A regarding accident, he alongwith HC Hukam Singh reached the spot of accident and came to know that the injured has been removed to Dr.RML Hospital and he found two dead bodies of one male and one female and he removed them to RML Hospital by government vehicle and the FIR was got registered at police station and the accident site was photographed by Crime Team and they lifted blood samples from there.
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15.Sh.Gaurav Sabikhi, petitioner in suit no.448/11/08 examined himself as PW2 who in his examination in chief has reiterated the manner of accident as stated in claim petition and filed his affidavit Ex.PW2/A.
16. Smt. Anuradha Bhattacharya, petitioner no.1 in suit no.449/11/08 examined herself as PW3 and filed in evidence her affidavit Ex.PW3/B and proved the copy of identity card of deceased Ex.P1, copy of certificate issued by Amity International School Ex.P2, date of birth certificate of deceased Ex.P3 and copy of her date of birth certificate Ex.P4.
17. Mrs. Anita Dighe, petitioner no.2 in suit no.402A/11/08 examined herself as PW4 and filed in evidence her affidavit Ex.PW4/B and proved the copy of passport of deceased Anirudh Rawat Ex.PX1.
18. The petitioners in suit no.449/11/08 examined Sh.Ravi Prakash, Office Assistant, Amity International School as PW5 who stated that their school has Psychology Counselors and they are Psychology Graduates and stated that the Psychology Counselors have been appointed in the pay scare of TGT i.e. Rs.930034100/ with the grade pay of Rs.4600/ which th is as per the recommendations of 6 Pay Commission and proved the certificate in this regard Ex.PW5/A.
19.The petitioners in suit no.449/11/08 also examined Dr.Abha Singh, Director Amity Institute of Psychology and Applied Sciences as PW6 who 9 stated that Ms. Sneha Kapoor was a student of their university of B.A. (Hons.) Applied Psychology in the batch 200609 and she had appeared in the examination of two semesters. PW6 further stated that after graduation placements are not done in their university and the placements are done after post graduation and they do not have the record of the placements in respect of the students who passed graduation from their university and one student from 200609 Batch of graduation did post graduation and was appointed in Summer Field School at the salary of Rs.24,000/ per month.
20. The petitioner in suit no.448/11/08 examined Sh.Niraj Kumar Singh, AGM(Legal and Compliance), Vipul Medcorp TPA Pvt. Ltd. as PW7 who stated that Sh.Gaurav Sabikhi had taken mediclaim policy from our organization w.e.f. 05.06.2007 to 04.06.2008 for a sum of Rs.1 Lac and proved the copy of the details of the insurance policy Ex.PW7/1 and stated that the petitioner had claimed a sum of Rs.2,06,769/ for the treatment of injuries and the said claim was rejected and proved the claim form submitted by petitioner Ex.PW7/2(colly), the claim processing sheet by which the claim was rejected Ex.PW7/3 and copy of summary of policy details Ex.PW7/4 and the original bills submitted by petitioner Ex.PW7/5(colly).
21. On the other hand respondents did not examine any witness despite 10 opportunities and RE was closed.
22.I have heard the Ld. Counsel for the parties and perused record. My findings on various issues are as under:
ISSUES NO. 1 :
23.As the petitions have been filed U/s 166 Motor Vehicle Act it was incumbent upon the petitioners to prove that the accident was caused due to the rash and negligent driving of the vehicle no. DL3CAJ9445 by driver Sh.Satyajeet.
24.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are 11 sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
25. The case of the petitioners is that on 24.02.2008 Sh.Gaurav Sabiki(injured in suit no.448/11/08), Sh. Satyajeet, Sh.Aniruddha Rawat(deceased in suit no.402A/11/08) and Ms.Sneha Kapoor(deceased in suit no.449/11/08) were travelling in car no.DL3CAJ9445 which was being driven by Sh.Satyajeet in rash and negligence manner and the driver was repeatedly told by occupants of the car not to drive the vehicle at a fast speed but he did not pay any attention and when they reached near Art Gallery, round about of India Gate, respondent no.1 could not control the car as a result of which car struck against the footpath and then hit a tree and over turned 23 times and the occupants of the car sustained injuries and they were taken to Dr.RML Hospital where Sh.Aniruddha Rawat(deceased in suit no.402A/11/08) and Ms.Sneha Kapoor(deceased in suit no.449/11/08) were declared brought dead. It is stated that the case vide FIR No.63/08, under Section 279//337/304A IPC was registered at PS Tilak Marg. Sh.Gaurav Sabikhi(petitioner in suit no.448/11/08) who was one of occupant of the car appeared in witness 12 box as PW2. PW2 stated in his examination in chief that on 24.02.2008 he alongwith Sh.Satyajeet, Anirudh Rawat and Sneha Kapoor was travelling from Park Hotel to Noida in car no.DL3CAJ9445 which was being driven in a rash and negligent manner by Sh.Satyajeet and the driver was repeatedly told not to drive the vehicle in rash and negligent manner but he did not pay any attention and when they reached near Art Gallery round about India Gate the driver lost control on account of high speed of car and struck against a tree. In the crossexamination of PW2 suggestions were given to the effect that they were asking the driver to drive more and more fast which denied by PW2. PW2 further stated in the crossexamination that he repeatedly asked driver to slow down the car. Although in the crossexamination of PW2 suggestions have been given to the effect that the occupants of the car were asking the driver to speed up the car and accident took place due to high speed of car but respondents have not adduced any evidence to corroborate their contention.
26.In National Insurance Company Ltd. v Gita Bindal, MAC App. No. 179/2004 the Hon'ble Delhi High Court has been pleased to hold:
12. The principle of res ipsa loquitur laid down in the aforesaid four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove 13 the accident and nothing more.
ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. iii. There are two requirements to attract res ipsa loquitur,
(i) that the "thing" causing the damage be under the control of the defendant and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer.
v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not know to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for 14 itself so that it is sufficient for the plaintiff to prove the accident and nothing more.
vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability.
vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
viii. The doctrine of res ipsa loquitur has been applied by the Courts in the following cases: ● Where victim was sleeping on a cot placed in front of his house by the side of the road when the offending vehicle dashed against the cot and 15 injured the claimant.
● Where a bus had dashed against a tree, causing death of a passenger.
● Where a vehicle negotiating a sharp "U" turn dashed against a tree, moved away to a distance of 150 feet from the road and then overturned.
● Where a vehicle wentoff the road, hit against the tree and rolled down killing a passenger.
● Where a truck dashed against the victim standing by roadside.
● Where a truck came at breakneck speed without blowing horn and dashed against a 9 years old boy, who was walking on the extreme left side of the road, from behind resulting in instantaneous death."
27. The petitioners have filed on record the copies of criminal record consisting of copy of charge sheet in case FIR no.63/08, under Section 279/338/304A IPC and Section 185 of Motor Vehicle Act, copy of FIR no63/08, under Section 279/338/304A IPC, PS Tilak Marg, copy of site plan, copy of seizure memo of driving licence of driver Sh.Satyajeet, copy of seizure memo of car no. DL3CAJ9445, copy of mechanical inspection report of offending vehicle, copy of postmortem report of deceased 16 Ms.Sneha Kapoor prepared at Lady Hardinge Medical College and Smt. S.K. Hospital, copy of postmortem report of deceased Sh.Aniruddha Rawat prepared at Lady Hardinge Medical College and Smt. S.K. Hospital, copy of statement under Section 164 Cr.PC of Sh.Gaurav Sabikhi/PW2 recorded on 05.04.2008 by the Ld.MM. Copy of MLC of petitioner Sh.Gaurav Sabikhi, copy of driving licence of respondent no.1. As per postmortem report of deceased Sh.Anirudha Rawat the cause of death is "Cranio cerebral damage as a result of blunt force impact/surface impact possible in a case of road traffic accident. All injuries are antemortem in nature." As per final report under Section 173 Cr.PC respondent no. 1/driver has been charge sheeted for offences under Section 279/338/304 A IPC and Section 185 Motor Vehicle Act. As per site plan the accident took place on the outer circle of India Gate and in the site plan the skid marks of the car have been shown and the car had hit the pavement and thereafter a tree. As per the allegations the accident took place while respondent no.1 was driving the offending vehicle and lost control of the vehicle and struck the vehicle against a tree.
28.The act of hitting of vehicle against a tree in view of judgment of National Insurance Company Ltd. v Gita Bindal(supra) shows that respondent no.1 has failed to exercise due care and had acted in rash and negligent manner. Respondents have not proved any other version of 17 accident. Thus the petitioners have prima facie proved that the accident took place due to rash and negligent driving of the vehicle no.DL3CAJ9445 by its driver in which Sh.Gaurav Sabiki(injured in suit no.448/11/08), Sh. Satyajeet, Sh.Aniruddha Rawat(deceased in suit no.402A/11/08) and Ms.Sneha Kapoor(deceased in suit no.449/11/08) were travelling. Issue no.1 is accordingly decided in favour of the petitioners and against the respondents.
ISSUE NO. 2
29. M/s Skoda Auto India Ltd. was initially impleaded as respondent no.2 in suit no.448/11/08 and respondent no.3 in suit no.449/11/08 and M/s Skoda Auto India Ltd. filed written statement and in para 7 of PO of written statement they have taken objection that the suit is bad for non joinder of necessary parties and M/s Skoda Auto India Ltd. has been impleaded just to extort money. An application under order 1 Rule 10 CPC was filed on behalf of M/s Skoda Auto India Ltd. for striking out of its name from array of parties and vide order dated 28.05.2011 the application under order 1 Rule 10 CPC filed on behalf of M/s Skoda Auto India Ltd. was allowed by my Ld.Predecessor and the name of respondent no.3 was deleted from the array of parties. This issue was framed on the basis of objection taken by M/s Skoda Auto India Ltd., however in view of deletion of name of M/s Skoda Auto India Ltd. from 18 array of parties vide order dated 28.05.2011, this issue has become infructuous. Moreover during the course of arguments parties have preferred not to address arguments on this issue.
ISSUE NO. 3
30.As issues no.1 has been decided in favour of the petitioners they are entitled to compensation.
COMPENSATION IN SUIT NO.449/11/08
31.Petition has been filed by petitioner no.1, mother of deceased, petitioner no.2 younger minor sister of deceased and petitioner no.3 maternal grand mother of deceased. It is stated that the deceased was 20 years of age at the time of accident and she was unmarried. In view of judgment of Hon'ble High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors.,M.A.C.APP. No.196/13, the multiplier shall be applicable as per age of deceased. In order to prove the age of deceased the petitioners have filed on record the copy of passport of deceased as per which the date of birth of deceased is 02.10.1987, hence the deceased was around 20 years and 4 months of age at the time of accident the appropriate multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
32. It is stated in the claim petition that the deceased Ms.Sneha Kapoor was nd student of B.A.(Hons.) 2 year, Applied Psychology in Amity University, 19 Uttar Pradesh and was also working as part time worker with Red Bulls Company and was earning a sum of Rs.10,000/ per month. In para 15 of her affidavit the petitioner no.1/PW3 has stated that the deceased was pursuing B.A.(Hons.) in Applied Psychology from Amity University and had already completed 2 years and in para 17 of her affidavit the petitioner no.1/PW3 has further stated that the deceased was also employed as part time worker in Red Bull Company which manufactures energy drink and had joined the said company on 23.06.2007. The contention of counsel for insurance company is that the petitioners have not examined any witness from M/s Red Bull in order to prove the employment and income of deceased. The petitioners have not examined any witness from M/s Red Bull in order to prove the employment and income of deceased.
33. The contention of counsel for petitioners is that the deceased was student of B.A.(Hons.) Applied Psychology in Amity University, Uttar Pradesh and had already passed 2 years and was to be graduate after one more year and would have been decently employed with good earning. The contention of counsel for insurance company is that it has not been proved that the deceased was earning at the time of accident and in the circumstances it can not be said that she would have earned good amount. Although the deceased was stated to be a student at the 20 time of accident and in the circumstances it can not be said that she had no potential income. It is well settled proposition of law that the potential income of the deceased can be taken into consideration for awarding loss of dependency. In order to prove the potential income of deceased the petitioners have examined PW5 Sh.Ravi Prakash, Office Assistant at Amity International School who stated that their school has Psychology counselors and they are Psychology Graduates and the Psychology Counselors have been appointed in the pay scale of TGT i.e. Rs.930034100/ with the grade pay of Rs.4600/ which is as per the th recommendations of 6 Pay Commission. PW5 admitted in the cross examination that the Psychology Counselors are appointed on the basis of merit as determined in the selection process by inviting applications. The petitioners also examined PW6 Dr. Abha Singh, Director Amity Institute of Psychology and Allied Sciences who stated that Ms. Sneha Kapoor was student of their university of B.A.(Hons.) Applied Psychology and she had appeared in examination of two semesters of aforesaid course before her accident and she further stated that after graduation placements are not done in their university and the placements are done after Post Graduation and she has no record of the placements in respect of students who passed graduation from their university. Although petitioner no.1 has stated in para 15 of her affidavit that Ms. Sneha 21 Kapoor had passed her 2 years of B.A. course but PW6 stated that Ms.Sneha Kapoor had passed 2 semesters of the said course. The petitioners have also filed on record the photocopies of statements of grades issued by Amity University for examination 1Semester, December 2006 and examination II Semester, May 2007. The photocopies of the marksheets filed on record shows that the deceased had passed 2 semesters of the B.A(Hons.) Allied Psychology course. PW6 further stated in the crossexamination that the most of students of B.A(Hons.) Applied Psychology go for Post Graduation and they have no record as to how many students of the batch 200609 of B.A(Hons.) Applied Psychology applied to take admission in M.A. Psychology. PW6 admitted in the crossexamination that the students get placements as per their own caliber. No evidence has been adduced to prove the income of a candidate who had passed B.A(Hons.) Applied Psychology in the year 2009. The petitioners have relied on decision in MAC App. No.21213/06 titled as Ramesh Chand Joshi & Anr. v. New India Assurance Company Ltd. which pertains to the student of Bachelor of Engineering(Bio Technology) from Delhi College of Engineering and the Hon'ble High Court was pleased to take earning capacity of deceased as Rs.4.6 Lacs per annum on the basis of information regarding placement of engineering graduates furnished by Delhi College of Engineering. 22 However in the present case the deceased was a student of B.A(Hons.) Applied Psychology and it can not be said that she would have earned amount as earned by a engineering graduate. As per contention of th petitioner the deceased after passing of 12 standard was pursuing B.A(Hons.) Applied Psychology. Presumption can be drawn that after completion of B.A(Hons.) Applied Psychology Ms. Sneha Kapoor would have got good opportunities for employment and would have earned good amount. Petitioner has not adduced any evidence to the effect that what were the earnings of a person holding B.A(Hons.) Applied Psychology degree during the corresponding period. Even the minimum wages of a graduate w.e.f. 01.02.2008 were Rs.4393/ per month. In MAC App. No. 1040/2012 titled as Dharmender Kumar Jain & Ors. v. New India Insurance Company Ltd. the deceased Ms. Shikha Jain who expired in the accident which took place on 20.09.2004 was pursuing B. Sc.(Hons.) Mathematics course and the Hon'ble High Court was pleased to hold that the deceased was meritorious student and after completion of her graduation would have got some job as an Assistant Accountant or in any government or any Public Sector Undertaking or in the private sector or as TGT on the basic pay of Rs.5500/ per month, in the year 2004 and the gross salary of the deceased would have been Rs.10,000/ per month. In the present case the petitioners have not adduced any 23 evidence regarding the potential income of deceased on completion of her course. However, presumption can be drawn that after completion of B.A(Hons.) Applied Psychology course the deceased would have earned a sum of Rs.10,000/ per month. In the circumstances the income of deceased shall be taken as Rs.10,000/ per month.
34. The deceased was unmarried. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."
35. In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.10,00050% of Rs.10,000/=Rs.5,000/ per month. 24
36.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
37. The age of the petitioner has been taken as 20 years and 4 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.5000+50% of Rs.5000/=Rs.7500/ per month. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.7500x12x18=Rs.16,20,000/. The petitioners are also awarded a sum of Rs.10,000/ each towards loss of love and affection, loss of estate and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.16,20,000/
Funeral Expenses : Rs.10,000/
Loss of Estate : Rs.10,000/
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Loss of Love and Affection : Rs.10,000/
TOTAL : Rs.16,50,000/
RELIEF
38. The petitioner is thus awarded Rs.16,50,000/(Rs.Sixteen Lacs Fifty Thousand only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. Petitioner no.2 is the minor sister of deceased. Petitioner no.1/PW3 stated in the crossexamination that she is earning and her daughters were dependent on her. Petitioner no.3 is the maternal grand mother of deceased, hence it can not be said that she was dependent on deceased. The petitioner/PW3 stated in the crossexamination that the father of victim is not staying with her and she has remarried to Sh.Deeptiman Bhattacharya and she is supporting her daughter. The petitioners have also filed on record an affidavit dated 16.08.2013 of Sh.Krishan Kapoor biological father of deceased as per which deceased Ms.Sneha Kapoor was born on 02.10.1987 from his wedlock with petitioner no.1 and they divorced by mutual consent on 03.08.2002 and the custody of deceased was handed over to petitioner no.1 and he has no objection to decree or compensation being awarded in favour of petitioner no.1. Moreover, in 26 view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another(supra) father of deceased can not be considered a dependent on deceased. In the circumstances entire amount is awarded in favour of petitioner no.1.
39.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
40. 10% of the award amount shall be released to the petitioner no.1 by transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.27
9. Fixed deposit in respect of 10% for a period of nine years.
41.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Smt.Anuradha Bhattacharya.
42.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
43.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
44.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
45.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
46.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
47.Bank shall transfer Savings Account to any other branch/bank according 28 to her convenience.
48.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
49.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
50.The respondent no.2/insurance company shall deposit the award amount directly in bank account of petitioner at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
51.Petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. Petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. Petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
29
52.The respondent no.2/insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 02.03.2015.
COMPENSATION IN SUIT NO.402A/11/08
53.Petition has been filed by petitioner no.1, father of deceased and petitioner no.2 mother of deceased. It is stated that the deceased was 21 years of age at the time of accident and he was unmarried. In view of judgment of Hon'ble High Court in The Oriental Insurance Company Ltd. v. A.K.Puri & Ors.,M.A.C.APP. No.196/13, the multiplier shall be applicable as per age of deceased. In order to prove the age of deceased the petitioners have filed on record the copy of passport of deceased as per which the date of birth of deceased is 09.09.1986, hence the deceased was around 21 years and 5 months of age at the time of accident the appropriate multiplier applicable as per Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 shall be of 18.
54. It is stated in the claim petition that the deceased Sh. Aniruddha Rawat rd was student of B.A. 3 year, Industrial Relations and Personal Management and German in Delhi College of Arts and Commerce and he 30 has worked in the Red Bull India Pvt. Ltd. in 2006 for one year and then from 01.07.20007 to October 2007 at the monthly salary of Rs.15,000/ per month and thereafter on 10.10.2007 he quit his job to complete his graduation. In para 8 of her affidavit petitioner no.2 has stated that the rd deceased was student of B.A. 3 year, Industrial Relations and Personal Management and German in Delhi College of Arts and Commerce and in para 9 of affidavit petitioner no.2 further stated that the deceased had already completed his two years in the aforesaid course. In para 12 of st affidavit the petitioner no.2 further stated that in 2005 after completing 1 year of college, the deceased worked as a part time employee in Red Bull Company Pvt. Ltd and within a month he was offered a full time job as TraineeCell Marketing Executive w.e.f.01.07.2005 and he was drawing salary of Rs.10,000/ per month. It is further stated that the deceased worked for over a year and then quit his job to continue his studies and it is further stated that in the year 2007 he was again approached by Red Bull Company Pvt. Ltd. and was given the job again and promoted as a Energy Team Leader and his gross salary was Rs.15,000/ per month. The contention of counsel for insurance company is that the petitioners have not proved the employment and income of deceased by any cogent evidence. The petitioners have not summoned any record from Red Bull Company Pvt. Ltd. in order to prove the employment and income of 31 deceased as pleaded by petitioners. The petitioners have pleaded that rd the deceased was student of B.A. 3 year, Industrial Relations and Personal Management and German in Delhi College of Arts and Commerce and the petitioners have filed on record the copy of identity card issued by Delhi College of Arts and Commerce as per which the rd deceased was student of 3 year B.A.Programme.
55. The contention of counsel for petitioners is that the deceased was rd student of B.A. 3 year, Industrial Relations and Personal Management and German in Delhi College of Arts and Commerce and was to be graduate after one year and would have been decently employed and would have good earnings. The contention of counsel for insurance company is that it has not been proved that the deceased was earning at the time of accident and in the circumstances it can not be said that he would have earned good amount. Although the deceased was a student at the time of her death but it can not be said that he had no potential income. It is well settled proposition of law that the potential income of the deceased can be taken into consideration for awarding loss of dependency. As per contention of petitioner the deceased after passing th rd of 12 standard was pursuing B.A. 3 year, Industrial Relations and Personal Management and German. Presumption can be drawn that after completion of B.A. Industrial Relations and Personal Management and 32 German B.A(Hons.) the deceased would have got good opportunities for employment and would have earned good amount. Petitioner has not adduced any evidence to the effect that what were the earnings of a person holding B.A. Industrial Relations and Personal Management and German degree during the corresponding period. Even the minimum wages of a graduate w.e.f. 01.02.2008 were Rs.4393/ per month. In MAC App. No. 1040/2012 titled as Dharmender Kumar Jain & Ors. v. New India Insurance Company Ltd. the deceased Ms. Shikha Jain who expired in the accident which took place on 20.09.2004 was pursuing B. Sc.(Hons.) Mathematics course and the Hon'ble High Court was pleased to hold that the deceased was meritorious student after completion of her graduation would have got some job as an Assistant Accountant or in any government or any Public Sector Undertaking or in the private sector or as TGT on the basic pay of Rs.5500/ per month, in the year 2004 and the gross salary of the deceased would have been Rs.10,000/ per month. In the present case the petitioners have not adduced any evidence regarding the potential income of deceased on completion of his course. However, presumption can be drawn that after completion of B.A. Industrial Relations and Personal Management and German course the deceased would have earned a sum of Rs.10,000/ per month. In the circumstances the income of deceased shall be taken as Rs.10,000/ per 33 month.
56. The deceased was a bachelor. In Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 it was held by Hon'ble Supreme Court that :
"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father."
57. In view of the above judgment, 50% is to be deducted towards personal and living expenses and after deduction of 50% , the income of deceased would be Rs.10,00050% of Rs.10,000/=Rs.5,000/ per month.
58.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's 34 case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
59. The age of the petitioner has been taken as 20 years and 4 months at the time of accident. Hence after addition of 50% income of deceased would be Rs.5000+50% of Rs.5000/=Rs.7500/ per month. After applying the multiplier of 18, the total loss of dependency is computed to be as Rs.7500x12x18=Rs.16,20,000/. The petitioners are also awarded a sum of Rs.10,000/ each towards loss of love and affection, loss of estate and funeral expenses.
The total compensation is determined as under:
Loss of dependency : Rs.16,20,000/
Funeral Expenses : Rs.10,000/
Loss of Estate : Rs.10,000/
Loss of Love and Affection : Rs.10,000/
TOTAL : Rs.16,50,000/
35
RELIEF
60. The petitioners are thus awarded Rs.16,50,000/(Rs.Sixteen Lacs Fifty Thousand only) with interest at the rate of 7.5% per annum in view of judgment of Rajesh and others V.Rajbir Singh(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner and against the respondents. Petitioner no.1 father of deceased can not be considered a dependent on deceased in view of judgment of Sarla Verma and Ors. vs Delhi Transport Corporation and Another(supra). In para 15 of affidavit petitioner no.2 stated that previously petitioner no.1 was employed as Lecturer of Physics in DAV College, Dehradun and he also taught as a visiting faculty in Universities of various countries and has devoted his life to society as a full time social worker. In the circumstances entire amount is awarded in favour of petitioner no.2/mother of deceased.
61.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
62. 10% of the award amount shall be released to the petitioner no.2 by 36 transferring it into her savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
63.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Dr.Anita Dighe.
64.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
65.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
37
66.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
67.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
68.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
69.Bank shall transfer Savings Account to any other branch/bank according to her convenience.
70.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
71.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
72.The respondent no.2/insurance company shall deposit the award amount directly in bank account of petitioner at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of 38 delay.
73.Petitioner shall file two sets of photographs along with her specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. Petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. Petitioner shall file her complete address as well as address of her counsel for sending the notice of deposit of the award amount.
74.The The respondent no.2/insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to her counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 02.03.2015. COMPENSATION IN SUIT NO.448/11/08 MEDICINES AND MEDICAL TREATMENT
75. The case of the petitioner is that after the accident on 24.02.2008 he was taken to Dr.RML Hospital and on the same day he was admitted in Bhardwaj Hospital, Noida and he was discharged from the said hospital on 13.03.2008 and thereafter he has undergone subsequent treatment at 39 Bhardwaj Hospital. Copy of MLC of petitioner prepared at Bhardwaj Hospital has been filed as per which he was taken to said hospital on 24.02.2008 at about 7.30 AM and as per said MLC the patient was initially taken to RML Hospital where he was given first aid. The petitioner has filed on record the photocopy of discharge report prepared at Bhardwaj Hospital as per which he was admitted in the said hospital on 24.02.2008 and was discharged on 13.03.2008. The petitioner has not filed his original treatment record. The petitioner/PW2 stated in the cross examination that he was removed to Bhardwaj Hospital and he has submitted the original bills and treatment papers to his insurance company with whom he had mediclaim policy but he had not received any claim from the said insurance company. The petitioner examined PW7 Sh.Neeraj Kumar Singh, AGM(Legal and Compliance), Vipul Medcorp TPA Private Ltd. who stated that the petitioner had taken mediclaim policy from their company which was effective from 05.06.2007 to 04.06.2008 for a sum of Rs.1 Lac and the petitioner had claimed a sum of Rs.2,06,769/ for treatment of injuries due to the accident but the said claim was rejected and the copy of claim processing sheet is Ex.PW7/3 and the original bills submitted by the petitioner are Ex.PW7/5(colly). It is observed in Ex.PW7/3 that the petitioner was admitted with history of severe RTA and as per the FIR the patient was under the influence of 40 alcohol, hence the insurance company rejected the claim. As per PW7 the petitioner had claimed a sum of Rs.2,06,769/ and the same was not paid by Vipul Medcorp TPA Private Ltd. from which the petitioner had taken mediclaim policy. The petitioner has not filed any prescription to support any other medical bill. In the circumstance the petitioner is awarded a sum of Rs.2,06,769/ towards medicines and medical treatment.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
76.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another, AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."
77. The case of the petitioner is that after the accident on 24.02.2008 he was taken to Dr.RML Hospital and on the same day he was admitted in Bhardwaj Hospital, Noida and he was discharged from the said hospital 41 on 13.03.2008 and thereafter he has undergone subsequent treatment at Bhardwaj Hospital. Copy of MLC of petitioner prepared at Bhardwaj Hospital has been filed as per which he was taken to said hospital on 24.02.2008 at about 7.30 AM and as per said MLC the patient was initially taken to RML Hospital where he was given first aid. The petitioner has filed on record the photocopy of discharge report prepared at Bhardwaj Hospital as per which he was admitted in the said hospital on 24.02.2008 and was discharged on 13.03.2008. The contention of counsel for petitioner is that the petitioner had to undergo surgery in which the part of his intestine was removed and on that account the petitioner will suffer difficulties in digestion and will suffer other side effects. The petitioner has filed on record the copy of discharge summary of Bhardwaj Hospital as per which he suffered perforation in ileum for which he was operated, however the petitioner has not examined any medical expert in order to prove the nature of injuries and the procedure performed on the petitioner and the complications which the petitioner is likely to suffer on account of surgery undergone by him. The petitioner has not proved the original treatment record nor the same has been summoned from the hospital concerned. Looking at the nature of injuries, extent of treatment, period of hospitalization and looking at the fact that the accident took place in the year 2008, petitioner is awarded a sum of 42 Rs.30,000/(Rs.Thirty Thousand) towards pain and suffering.
78.It is stated that the petitioner was 25 years at the time of accident. Looking at the nature of injuries notice can be taken of the fact that on account of injuries sustained the petitioner may not have been able to contribute towards his family duties and may not have been able to enjoy the amenities of life. In the circumstances looking at the fact that the accident took place in the year 2008, petitioner is awarded a sum of Rs.10,000/(Rs.Ten Thousand) towards loss of amenities of life. CONVEYANCE AND SPECIAL DIET
79.In the claim petition and in affidavit the petitioner has not stated that he incurred any expenditure on conveyance. The contention of counsel for insurance company is that the petitioner has not adduced any evidence to prove the expenditure on conveyance. Although the petitioner has not proved any document in order to prove expenditure on conveyance, however, notice can be taken of the fact that after the accident the petitioner was taken to RML Hospital and thereafter he was removed to Bhardwaj Hospital, Noida, and thereafter he has undergone further treatment and after discharge from the hospital and for subsequent treatment the petitioner might have hired the services of private conveyance/ambulance as he may not have been able to use public conveyance and might have incurred expenditure on the same. In the 43 circumstances and looking at the fact that the accident occurred in the year 2008 a sum of Rs.5,000/ would be just and proper towards conveyance charges and the same is awarded accordingly.
80.In the claim petition and in affidavit petitioner has not stated that he incurred any expenditure on special diet. The contention of counsel for insurance company is that the petitioner has not proved that he was advised special diet and he has incurred expenditure on the same. Although the petitioner has not proved that he spent amount on special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedy recovery and might have incurred expenses on the same. Thus the petitioner is awarded a sum of Rs.5,000/ towards special diet.
LOSS OF INCOME
81.It is stated in the claim petition that the petitioner was 25 years of age at the time of accident and was self employed as interior designer and was earning a sum of Rs.50,000/ per month. In para 15 of his affidavit the petitioner stated that in the year 2003 he did diploma course in interior designing and was self employed as interior designer. In his examination in chief the petitioner/PW2 stated that he is a interior designer and used to earn Rs.40,000 to 50,000/ per month. In order to prove his income the 44 petitioner has filed on record the copy of acknowledgment of ITR for the assessment year 200809 and as per the endorsement on the same the said ITR was filed on 23.4.2008 i.e. after the accident. The petitioner has not filed copy of ITR filed by him for the assessment year 200708 in order to prove the income declared by him for the said year. The petitioner has also not filed on record the ITR filed by him for the assessment year 200910 in order to prove the loss of income as suffered by him on account of this accident. As per ITR for the assessment year 200809 the total income of the petitioner was Rs.1,43,345/per annum (Rs.11,945.41/ per month) which may be rounded as of Rs.11946/ per month.
82.The petitioner has not proved any medical records by which he was advised rest for any specific period. The petitioner/PW2 stated in the examination in chief that on account of accident he remained confined at home for two and half months. In the circumstance the petitioner is awarded the loss of income for two and half months. Consequently the petitioner is awarded a sum of Rs.29,865/ towards loss of income.
83. The petitioner has not proved that he has suffered any permanent disability due to this accident or the nature of injuries sustained by him were such that on account of said injuries, he may not be able to perform his avocation in future or his efficiency will be reduced and his capacity to 45 earn will be affected. In the circumstances no amount is being awarded on account of future loss of income.
The total compensation is assessed as under:
Medicines and Medical treatment : Rs.2,06,769/ Pain and suffering and loss of Amenities of life : Rs.40,000/ Conveyance and Special Diet : Rs. 10,000/ Loss of income : Rs. 29,865/ TOTAL : Rs.2,86,634/ RELIEF
84.The petitioner is awarded a sum of Rs.2,86,634/(Rs.Two Lacs Eighty Six Thousand Six Hundred Thirty Four only) with interest at the rate of 7.5% per annum from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents in favour of the petitioner. The entire award amount be released to the petitioner.
85.The respondent no.2/insurance company shall deposit the award amount directly in the bank account of the claimant at UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
86.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of 46 the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
87.The respondent no.2/insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 02.03.2015.
APPORTIONMENT OF LIABILITY:
88. The contention of counsel for respondent no.2/insurance company is that the driver was under the effect of intoxication at the time of accident and as per charge sheet respondent no.1/driver has been charge sheeted for offences under Section 185 of Motor Vehicle Act, hence insurance company is not liable to indemnify the insured. The contention of counsel 47 for respondent no.1/driver is that the insurance company has not proved the volume of alcohol in the blood of respondent no.1, if he was under the effect of intoxication.
89.Section 185 of the Motor Vehicle Act 1988 provides that whoever, while driving, or attempting to drive a motor vehicle has in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to Two Thousand Rupees or with both.
90.In Daya Shankar Vs Dheeraj Kumar & Ors., MAC. APP. 1111/2011 it was held that "since alcohol was not measured, the Claims Tribunal was not justified in holding that the Appellant was under the influence of alcohol and thus he contributed to the accident". Thus in view of aforesaid decision of Hon'ble High Court it is not open for respondent no.2/insurance company to plead that the driver Sh.Satyajeet caused the accident as he was under the effect of alcohol. In the circumstances the insurance company has not succeeded in proving that respondent no.1 was under the influence of alcohol. Thus, the respondent no. 1 being the driver, respondent no.2 being the insurer and LR's of respondent no.3 being the owner are held jointly and severally liable. Respondent No.2 being the insurer is directed to deposit the award amount in all three 48 cases within 30 days with interest @ 7.5% per annum from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. An attested copy of award be given to the parties(free of cost).
File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 16.12.2014 Judge: MACT1 : New Delhi