Delhi District Court
Raja Son Of Shri Ekram vs Arun Khan Son Of Ismail Khan (Driver) on 3 November, 2012
IN THE COURT OF MS. NIRJA BHATIA :
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
Suit No.410/2011/2006
Unique Case ID No.02403C0291972006
Injury Case
Raja Son of Shri Ekram,
(Petitioner being minor, is represented
through his mother, Smt.Salma W/o Ekram)
R/o Jhuggi No.170, Nangla Machhi, Kali Mata Basti,
Pragati Maidan, New Delhi.
Petitioner
Versus
1 Arun Khan Son of Ismail Khan (driver)
R/o N-16B/127, T-Huts, Sulabh Sauchalaya,
Sanjay Basti, Timar Pur, Delhi-110054.
2 Shiv Bhola Son of Badlu Prasad (owner)
R/o House No.N-68/380, T-Huts, Aruna Nagar,
Majnu Ka Tilla, Delhi.
3 IFFCO TOKIO General Insurance Company Ltd.
Fai Building, 10, Shaheed Jeet Singh Marg, New Delhi-110067.
Respondents
----------------------
Date of institution: 08.02.2006
Date of reserving judgment/order: 03.11.2012
Date of pronouncement: 03.11.2012
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 1 of 15
AWARD
This judgment cum award shall decide the present petition filed under Section 166 read with Section 140 MV Act, 1988 as amended up to date (hereinafter referred as Act), for grant of compensation in an injury case. 2 The brief facts necessary for decision are that petitioner, Raja aged about 13 years, met with road traffic accident on 10.7.2005 while he was going to play with his friend, Pradeep Kumar and when he reached near CNG Pump and was in the process of crossing the road towards Ashish Service Station at Ring Road, Sarai Kale Khan, he was hit by the offending Car, bearing registration No.DL 9C G-2746, driven allegedly in rash and negligent manner by R-1, Arun Khan. As a result of the accident, he was grievously injured and was removed to Holy Family Hospital where his treatment was continued for some time, however, as he could not recover, he was taken to LNJP Hospital. However, it is stated that the victim could not re-coup and suffered loss of memory and was untimely rendered permanent disabled. It is claimed that he also lost hearing capacity. The petitioner states that he had made huge expenses in respect of his treatment, diet, conveyance, cost of medicines and as the petitioner has become permanent disabled, there are dim hopes of his recovery. In the circumstances above, on account of pecuniary and non-pecuniary heads, compensation of Rs.12 lac have been prayed.
3 Consequent to the filing of the petition, summons were issued to the respondents. However, the owner, R-2 despite being served, did not cause appearance and was proceeded ex-parte on 30.8.2006. The driver, R-1 though was also served, did not file the reply whereafter his defence was struck of. The issues were also framed on the same day, i.e., 30.8.2006 by my learned Predecessor to the following extent :
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 2 of 151 Whether petitioner sustained injuries in the accident on 10.7.2005 due to rash and negligent driving of vehicle No.DL 9C G-2746 on the part of R-1, Arun Khan?
2 To what amount of compensation, the petitioner is entitled to and from whom?
3 Relief.
4 The petitioner through his mother, Smt.Salma tendered the examination affidavit. He himself appeared as PW2. Shri Danveer Singh, Record Clerk, LNJP Hospital appeared as PW3. Dr.G.R.Sethi had been examined as PW4. Dr.Pushpa Lata from Holy Family Hospital appeared as PW5. The insurance company since had no defence, closed its evidence and the matter was listed for final arguments. However, at the stage of final arguments, it was observed that the petitioner has suffered particular injuries regarding loss of hearing impairment. Consequently, assistance from Dr.Ved Vrat was sought who also affirmed the fact of petitioner suffering from hearing impairment, however, the extent of disability could not be assessed as he did not expertise the above and expressed that the petitioner be referred to a Medical Board. Subsequently, the petitioner was referred for examination of disability. The report was received whereafter Dr.Saurabh from Madan Mohan Malviya Hospital appeared as PW6. It is pertinent to observe that the disability of the petitioner was assessed @ 75% pertaining to whole body, Neuro Cognitive impairment. The parties thereafter, were asked to make their submissions. I have heard the same and have carefully perused the record.
My findings on the issues are as follows :
ISSUE NO.1 : NEGLIGENCE 5 Since, the present petition is registered as claim petition under Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 3 of 15 Section 166(4) MV Act, it was incumbent upon the petitioner to establish the factum of negligence attributable to driver, Arun Khan, in plying the offending vehicle (Indica Car) bearing registration No.DL 2C M-0685. 6 In the present case, the FIR is registered on the basis of statement made by the friend of the petitioner, Pradeep with whom the petitioner was playing at the time of accident. Initially in the FIR and subsequently in the statement of petitioners' witnesses, the facts leading to the accident have been disclosed, stating that on the day of incident at about 12.30 PM while they were in the process of crossing the road for going towards Ashish Service Station, the erring driver while plying the offending vehicle rashly, negligently and at fast speed, hit them resulting in their both suffering the injuries whereafter the erring driver himself took both of them to Holy Family Hospital. The MLC of the petitioner prepared immediately after the accident, is reflecting the injuries, commensurate to being caused in the road traffic accident.
7 The erring driver in the reply, raised defence that the accident was not caused with his vehicle, however, he later on contradicted his own plea and claimed that the minor petitioner and his friend while playing, had come suddenly in front of his vehicle due to which he had to take high brakes despite which the petitioner was hit against his vehicle and fell on the road. 8 It is pertinent to observe that despite opportunity being accorded, the erring driver has not led his own version. No cross-examination of the victim and his mother have been conducted. Further, despite alleging false implication, he did not report the matter to any higher police authority and/or filed any complaint against the IO. Further, the driver contradicted himself again as he claimed that the vehicle was driven at a slow speed which in fact is not probable in view of his own statement wherein he admitted that Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 4 of 15 he could not control the vehicle despite taking sudden high brakes and it collided with the victim. Had the vehicle being driven at a slow speed, there was no occasion of its getting beyond control of the driver and/or not taking halt at a distance. His presence at the spot and involvement is established further as he alone took the victim and complainant Pradeep to Holy Family Hospital and in pursuit of victim's treatment, spent an amount of Rs.2,100/-.
There is no reason pleaded by the driver to the contrary to have spent the above amount, which also leads to an adverse inference against him. 9 Further, the IO during the investigation, prepared the site plan, seized the offending vehicle whereafter the erring driver was arrested and the documents pertaining to the offending vehicle and the DL of the erring driver, were seized. The offending vehicle was later on released on superdarinama. It be observed that since the IO being a neutral person and a public servant, has conducted the investigation fairly and there are no allegations of biasness against him in conducting the investigation and as all the material has been corroborated during the evidence of the petitioner, his investigation is to be believed. Hence, sufficient material has been placed on record to prove the factum of negligence on the part of driver, Arun Khan, in plying the offending car, rashly and negligently and in causing the accident against the petitioner. 10 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is laid in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Kaushnuma Begum and others Versus New Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 5 of 15 India Assurance Limited, 2001 ACJ 421 SC as well as the case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION :
MEDICAL BILLS
11 The petitioner has placed on record four original medical bills, exhibited as Ex.PW1/1 to Ex.PW1/4, amounting to Rs.1,730/- in respect of the medicines purchased by him and other expenses incurred towards the hospital, due to the injuries suffered by him in the accident. 12 The perusal of the aforesaid bills reflect that the bill, Ex.PW1/2 for an amount of Rs.40/- is in the name of one Brahma Nand with whom the petitioner has not alleged any relation. The amount of the same hence, is to be deducted from the total amount claimed by the petitioner. 13 Accordingly, award for an amount of Rs.1,690/- hence, is passed in favour of the petitioner towards treatment expenses. PAIN & SUFFERINGS 14 In the MLC, Ex.PW5/A collectively 1 to 13 pages, it is shown that the victim suffered head injuries and suffered fracture of linear in anterior parietal lobe. The report of NCCT Head showed tiny post traumatic pneumoniam section of linear fracture in anti parietal lobe of right mild cerebral as a consequence of which he remained hospitalized. He has consequently underwent long drawn treatment and the impact has not Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 6 of 15 recovered at all as is shown from the disability certificate. Further, the CAT Scan of head of the injured reflects tiny rounded low density area representing air bubble over the surface in posterior fossa on right side just behind petrous bone (3). Line fracture was also noted in right parietal bone anteriorly. He subsequently took treatment from LNJP Hospital where it is specifically noted that he has suffered post traumatic abnormality with right side hearing loss. 15 Though there is no yard-stick to assess the pain and suffering undergone by the petitioner, however, in view of severeness of the trauma which the petitioner has undergone and with intention to mitigate the sufferings of the petitioner, an amount of Rs.1,00,000/- is awarded towards pain & sufferings considering the subsequent treatment and the fact that the petitioner has suffered 75% permanent disability pertaining to whole body, Neuro Cognitive impairment. (Reliance is placed on Raj Kumar Versus Ajay Kumar, decided on 18.10.2010 in Civil Appeal No.8981/2010 and R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551). DIET & CONVEYANCE 16 Though, the petitioner has not filed on record any material to show the actual amount spent on account of diet, yet considering the fact that the petitioner suffered very grievous injuries including the head injuries and has also suffered memory loss as stated above, he is awarded Rs.25,000/- for special diet as he would have needed special diet having regard to the injuries undergone, to recover from the injuries. Besides, the petitioner is also awarded an amount of Rs.25,000/- towards conveyance charges as it can be presumed that due to the above injuries, he would have paid numerous visits to the doctor in connection with the treatment as he would have been rendered immobile and would have needed special arrangements for his regular follow-ups from the concerned doctor.
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 7 of 15ATTENDANT'S CHARGES 17 As has been observed in foregoing paragraphs, the petitioner has not been able to manage his regular movements due to suffering from the grievous injuries stated above as consequent to the above it is presumed that the petitioner is completely disoriented and is unable to manage himself even in respect of his daily routine, he needs the attendant for whole of his life. In such circumstances, the attendant charges as per Minimum Wages Act, for an unskilled worker @ Rs.3,044.90 for one year (twelve months), total amounting to Rs.36,538.80 which is rounded off to Rs.36,539/- are awarded in favour of the petitioner, till the filing of the petition. 18 It be observed that the petitioner has suffered complete mental disorientation and is unable to carry himself due to which his quality of life is compromised and he needs constant attention and care. Hence, attendant charges are to be awarded. Accordingly, the petitioner is awarded the attendant's charges equivalent to that of a semi-skilled worker @ Rs. 3,210.90, pertaining to the period, 10.7.2005.
19 Accordingly, an amount of Rs.6,93.554.40 (3210.90 X 12 X 18 (multiplier), which is rounded off to Rs.6,93,554/- is awarded to the petitioner towards future attendant's charges.
DISABILITY 20 At the time of accident, the injured is reported to be around 13 years of age. In the circumstances above, though there is no proof of his income at that time and/or competence to earn, it is to be presumed with the strata from which he belongs, even if he would not have pursued any studies and would have remained a labour on the basis of strength of his health and physical capabilities, he would have been easily absorbed as an unskilled Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 8 of 15 worker. The monthly income of an unskilled worker hence is to be considered in this case.
21 At the relevant time, the income of an unskilled labourer was Rs. 3,044.90. As is shown from disability certificate, Ex.PW6/A, the petitioner has suffered 75% disability relating to Neuro Cognitive Impairment. His functional loss of ability is clearly detailed by Dr.Saurabh, Senior Resident, Madan Mohan Malviya Hospital who has deposed that his disability is non- progressive and is unlikely to improve. It is stated that as a result of impairment, his competence of comprehending, taking instructions and overall understanding is going to suffer immensely. It is stated that though he shall have bodily growth, his mental impairment will continue. It is detailed that it is likely that he may develop psychiatric problems such as hallucinations. The fact that he has undergone hallucinations already and has got the history of seizures is shown from medical documents of LNJP Hospital placed on record. It is shown against the noting of doctor dated 23.8.2005 that he was delirious. The further record of LNJP Hospital shows the doubt regarding the hallucinations raised wherein the history stated by him is recorded showing that he was used to cry saying that somebody will beat him and some ghost is there. He has also complained constantly of mild headache and disturbed sleep. His other sufferings have also been noted clearly that he underwent further episodes of vomiting and there had been no response to the commands, it is noted that even if he was sitting or standing, he was not asking for the food etc. The above has also been comprehended by PW6 Dr.Saurabh and it is stated that he is suffering from lack of span of attention and is going to suffer from loss of handling himself qua activities of daily life including daily body hygiene and management.
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 9 of 1522 The fact that there is no co-ordination between the body and the brain and his impairment has resulted in awkwardness to outside world is also noted in the medical documents. The fact that he is going to suffer dis- inhabitation, likely to cause embarrassment to people around him, is also noted. The fact that due to the above, his inter-personal relationship, self- care, communication and vocational activities are to be compromised, which facts are observed by the medical experts. It is specifically stated that with this condition, he may not be able to perform any work even that of an unskilled category.
23 It is noted that since the petitioner has suffered mental impairment at the age of 11 years, it has impacted his personality greatly as at that age generally the child gains the understanding of social behaviour and understanding. With the above observations, in my view, nothing is left to be presumed further. It is hence, observed that the petitioner has suffered 100% loss of capacity to earn and in turn is a burden on the family which is also going to suffer constant trauma seeing their loved one in such disoriented condition. In such circumstances, in view of judgment in case tilted, Raj Kumar Versus Ajay Kumar (supra), the functional loss of ability of the petitioner, taking his monthly income equivalent to that of unskilled worker @ Rs.3,044.90, pertaining to the period, 10.7.2005, as under:
100 of Rs.3,044.90 = Rs.3,044.90 The yearly loss of the petitioner is thus, assessed as 3,044.90 X 12 = Rs.36,538.80 which is rounded off to Rs.36,539/-.
24 The Hon'ble Supreme Court in case titled, Santosh Devi Versus National Insurance Company Ltd. and others in Civil Appeal No. 3723 of 2012 passed on 23.4.2012, observed as under :
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 10 of 15"In our view, it will be naive to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families."
It has also been observed by the Hon'ble Supreme Court that :
"Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour .............. it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Being guided by the judgment above, amount of 30% is added in the income of the deceased and is calculated as under :
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 11 of 1536,539 X 30% = 10,961.70 36,539+ 10,961.70 = 47,500.70 rounded off to Rs.47,501/-
25 It has come on record that at the time of accident, the petitioner was merely 11 years of age. Hence, the maximum multiplier of '18' is taken and the above amount is calculated with the multiplier of 18, having regard to the expectancy of life in view of schedule appended with the Act. The petitioner is thus, awarded compensation of Rs.47,501 X 18 = Rs.8,55,018/-. LOSS OF DISFIGUREMENT/AMENITIES/ENJOYMENT OF LIFE 26 In view of the observations made in the preceding para and being guided by the judgment of Hon'ble High Court in case titled, Baby Radhika Gupta and Others Versus Oriental Insurance Company Ltd. and others, decided on 24.11.2009, in Civil Appeal No.7736 of 2009, the petitioner is awarded lump-sum compensation of Rs.1,00,000/- under the above head.
The total compensation is assessed as under :-
Treatment Expenses Rs. 1,690/-
Pain & Suffering Rs. 1,00,000/-
Diet & Conveyance Rs. 50,000/-
Attendant's Charges Rs. 36,539/-
Future Attendant's Charges Rs. 6,93,554/-
Disability Rs .8,55,018/-
Loss of Disfigurement/ Rs. 1,00,000/-
Amenities/ Enjoyment of life
Total Rs.18,36,801/-
Hence, the petitioner is awarded a total amount of Rs. 18,36,801/-.
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 12 of 15RELIEF 27 I hereby award an amount of Rs.18,36,801/- as compensation with interest @ 9% per annum, including interim award, if any, from the date of filing of the present petition, i.e., 8.2.2006 till the date of realisation of the amount, in favour of the petitioner and against the respondents. 28 The driver, R-1, is the principal tort feasor whereas R-2 and R-3 being the owner and the insurer, are the joint tort feasors, and are jointly and vicariously liable to pay the award amount to the petitioner.
29 In view of the above discussion, the insurance company is directed to discharge the liability of the award amount within a period of 60 days from today, along with interest @ 9% per annum, failing which interest @ 12% per annum shall be charged for the period of delay. 30 In the judgment of Union of India and others Versus Nansari and others, MACA 682/2005, decided on 13.1.2010, which has been affirmed by the Hon'ble Supreme Court in order dated 17.12.2009 in SLP (Civil) No.11801-11804/2005, the Hon'ble High Court have given directions for the protection of the award amount. In view of the aforesaid judgment, it is directed that out of the above awarded amount of Rs. 18,36,201/- (Rupees eighteen lac thirty six thousand two hundred and one only), an amount of Rs.1,36,201/- (Rupees one lac thirty six thousand two hundred and one only) be released forthwith to the petitioner. 31 The remaining amount of Rs.17,00,000/- (Rupees seventeen lac only), awarded in favour of the petitioner, Raja, be kept in the State Bank of India, way of FDR for a period of ten years in his account. The petitioner may approach Shri H.S.Rawat, Nodal Officer (Mobile No.09717044322), State Bank of India, for opening of the account after receiving the copy of the Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 13 of 15 award, whereafter the amount of the petitioner shall be released to him as under :
32 10% of the FDR amount be released to him on the expiry of first year, along with proportionate interest.
33 10% of the FDR amount be released to him on the expiry of second year, along with proportionate interest.
34 10% of the FDR amount be released to him on the expiry of third year, along with proportionate interest.
35 10% of the FDR amount be released to him on the expiry of fourth year, along with proportionate interest.
36 10% of the FDR amount be released to him on the expiry of fifth year, along with proportionate interest.
37 10% of the FDR amount be released to him on the expiry of sixth year, along with proportionate interest.
38 10% of the FDR amount be released to him on the expiry of seventh year, along with proportionate interest.
39 10% of the FDR amount be released to him on the expiry of eighth year, along with proportionate interest.
40 10% of the FDR amount be released to him on the expiry of ninth year, along with proportionate interest.
41 The remaining amount of 10% of the FDR amount be released to the petitioner on the expiry of tenth year, along with proportionate interest. The original FDR be kept with the bank which shall issue a photo identity card to the petitioner to ascertain his identity. The copy of the award shall be given to the parties.
42 It is directed that the FDR so deposited with the bank, be renewed automatically and the interest thereupon shall be paid monthly, Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 14 of 15 which shall be credited automatically in the savings account of the petitioner. The original FDR be detained by the bank in safe custody. However, the original passbook shall be issued and given to the petitioner along with the photocopy of the FDR. The bank is directed to hand over the original FDR on afflux of time and shall issue the photo identity card to the petitioner to facilitate the withdrawal after due verification. It is further directed that no cheque book shall be issued to the petitioner without the permission of this court.
43 It is also directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.
44 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.
Announced in open Court ( NIRJA BHATIA )
Dated : 3.11.2012 PO : MACT-02, (SE)
Saket Courts, New Delhi
Suit No.410/2011/2006 (Raja Versus Arun Khan etc.) Page 15 of 15