Delhi District Court
Pushpa Devi vs . Ram Kumar Yadav on 11 February, 2013
-:1:-
Pushpa Devi vs. Ram Kumar Yadav
IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,DWARKA
COURTS, NEW DELHI
IN THE MATTER OF :
PUSHPA DEVI ETC. VS. RAM KUMAR YADAV ETC.
M.A.C.P NO. 233/10
1 Smt. Pushpa Devi
W/o Late Sh. Narender
2 Km. Pooja
d/o Late Sh. Narender
3 Master Vikas
S/o Late Sh. Narender
4 Smt. Krishna Devi
W/o Sh. Chander Singh
(Petitioner no. 2 and 3 being minors through their mother/ natural guardian Smt.
Pushpa Devi, petitioner no.1)
All are residents of : Village Gudda,
District and Tehsil Jhajjar, (Haryana)
.........Petitioners
Versus
1 Sh. Ram Kumar Yadav ( Driver)
S/o Shri Kanhaiya Yadav,
R/o House no. TA54, Om Vihar,
Uttam Nagar, New Delhi - 110059.
2 Shri Ravinder Sharma, ( Owner)
S/o Shri Parmesh Kumar
MACP No. 227/10, 230/10 and 233/10)
( Page No.1 of Page no.31)
-:2:-
Pushpa Devi vs. Ram Kumar Yadav
R/o House no. 30, V.P.O Badana,
Tehsil Bahadurgarh, Distt. Jhajjar,
(Haryana)
3 ICICI Lombard General (Insurer)
Insurance Company,
Regd. Office : 315, IIIrd Floor,
Aggarwal City Mall, Opp. Rani Bagh,
Police Chowki, Pitampura, New Delhi 110001
CERTIFICATECUMPOLICY
NO.3003/52419972/02/00 VALID UPTO :30/02/2010
.......Respondents
1. Date of institution: 03.08.2010
2. Date of framing of issues: 22.01.2011
3.Date of hearing arguments :02.02.2013
4. Date of decision: 11.02.2013 AND IN THE MATTER OF :
SUKAN YADAV VS. RAM KUMAR YADAV MACP No 227/10 1 Sh. Sukan Yadav S/o Sh. Parav Yadav @ Paro Yadav r/o C22/2 Mohan Garden, New Delhi Permanent Address : Village Badki Rajba Debda Panchyat, Hasapur, Road Samistipur, Bihar .........Petitioner Versus MACP No. 227/10, 230/10 and 233/10) ( Page No.2 of Page no.31) -:3:- Pushpa Devi vs. Ram Kumar Yadav 1 Sh. Ram Kumar Yadav ( Driver) S/o Shri Kanhaiya Yadav, R/o House no. TS54, Om Vihar, Uttam Nagar, New Delhi - 110059.
2 Shri Ravinder Sharma, ( Owner) S/o Shri Parmesh Kumar R/o House no. 30, V.P.O Badana, Tehsil Bahadurgarh, Distt. Jhajjar, (Haryana) 3 ICICI Lombard General (Insurer) Insurance Company, Regd. Office : 315, IIIrd Floor, Aggarwal City Mall, Opp. Rani Bagh, Police Chowki, Pitampura, New Delhi 110001 CERTIFICATECUMPOLICY NO.3003/52419972/02/00 VALID UPTO :30/02/2010 .......Respondents
1. Date of institution: 02.08.2010
2. Date of framing of issues: 22.01.2011
3.Date of hearing arguments : 02.02.2013
4. Date of decision: 11.01.2013 AND IN THE MATTER OF :
MUKESH YADAV VS. RAM KUMAR YADAV MACP No 230/10 1 Sh. Mukesh Yadav S/o Sh. Chandi Yadav@ Chandresh Yadav MACP No. 227/10, 230/10 and 233/10) ( Page No.3 of Page no.31) -:4:- Pushpa Devi vs. Ram Kumar Yadav r/o Vilage Madeypur, ThanaHasanpur Samistipur, Bihar Also at C22/3, Mohan Garden, Near Metro Pillar no. 739 Uttam Nagar, New Delhi .........Petitioner Versus 1 Sh. Ram Kumar Yadav ( Driver) S/o Shri Kanhaiya Yadav, R/o House no. TS54, Om Vihar, Uttam Nagar, New Delhi - 110059.
2 Shri Ravinder Sharma, ( Owner) S/o Shri Parmesh Kumar R/o House no. 30, V.P.O Badana, Tehsil Bahadurgarh, Distt. Jhajjar, (Haryana) 3 ICICI Lombard General (Insurer) Insurance Company, Regd. Office : 315, IIIrd Floor, Aggarwal City Mall, Opp. Rani Bagh, Police Chowki, Pitampura, New Delhi 110001 CERTIFICATECUMPOLICY NO.3003/52419972/02/00 VALID UPTO :30/08/2010 .......Respondents
1. Date of institution: 03.08.2010
2. Date of framing of issues: 22.01.2011
3.Date of hearing arguments : 02.02.2013
4. Date of decision: 11.01.2013 AWARD/ JUDGEMENT:
MACP No. 227/10, 230/10 and 233/10) ( Page No.4 of Page no.31) -:5:- Pushpa Devi vs. Ram Kumar Yadav
1. Petition bearing no. 233/10 titled as "Pushpa Devi & Ors vs. Ram Kumar Yadav & Ors" filed by wife (petitioner no.1), minor children (petitioners nos. 2 and 3) and mother (petitioner no. 4) of the deceased whereas petition bearing no. 227/10 titled as "Sukan Yadav vs. Ram Kumar Yadav & Ors." and petition bearing no. 230/10 titled as "Mukesh Yadav vs. Ram Kumar Yadav & Ors." were filed by the injured themselves . The offending vehicle was driven by Respondent no.1 (in short R1) which was owned by respondent no 2 ( in short R2) and the same was insured with respondent no 3 ( in short R3).
2. Vide this common judgment, I shall decide three petitions as fully described above. Issues were framed on 22.01.2011 in all the claim petitions by consolidating the same after treating the petition no. 233/10 as leading case and evidence was commonly recorded in the said leading case.
3. Brief facts of the case are that on 29.05.2010, Narender (deceased in petition no.
233/10) was in the process of checking the terminal of the battery to find out the inside problem of the vehicle after having been parked on the other side of the road when the accident was caused by half body truck bearing no. HR 63A 4457 (hereinafter the offending vehicle) by its driver while driving the same in rash and negligent manner with high speed. The offending vehicle dragged the vehicle of the victims at the distance of about 3031 feet away after hit while taking steep cuts after causing accident resultantly, the deceased Narender and the other petitioners Sukan Yadav and Mukesh Yadav sustained the injuries. Narender and other injured were removed to RTRM hospital from the place of accident in a PCR for treatment. Narender succumbed to his injuries.
MACP No. 227/10, 230/10 and 233/10) ( Page No.5 of Page no.31) -:6:- Pushpa Devi vs. Ram Kumar Yadav
4. Pursuant to service of the notice, respondent no.1 did not file the written statement rather he chose to stay away from the proceeding, therefore, he was mentioned as ex parte vide order dated 22.01.2011. A written statement was filed on behalf of the respondent no. 2 wherein cursorily denied the factum and manner of the accident pleading that the vehicle in question was insured with the respondent no.3 covering the date of accident and hence, is not liable to pay any amount of compensation. An exorbitant amount is claimed without any basis.
5. This petition has been resisted by the insurance company after filing the separate written statement pleading therein that the accident did occur due to sole carelessness and negligence of the deceased and hence, the insurance company along with the insured cannot be made liable to pay any amount of compensation, however, it had been admitted that vehicle was insured in the name of R2 vide policy no. NO.3003/52419972/02/00 valid during the period 31.08.2009 to 30/08/2010 subject to the terms and conditions of the policy.
6. Issues were framed on 22.01.2011 in all the petitions
7. Having heard arguments advanced on behalf of both the sides and after perusal the material including the evidence on record, my issuewise findings are as under: ISSUE NO 1 ( in all the petitions)
1. Whether Sukan Yadav and Mukesh Yadav sustained injuries on 29/05/2010 due to rash or negligent driving of vehicle no. HR63A4457 by R1?
....OPP
2. Whether Sh. Narender had sustained fatal injuries on MACP No. 227/10, 230/10 and 233/10) ( Page No.6 of Page no.31) -:7:- Pushpa Devi vs. Ram Kumar Yadav 29/05/211 due to rash or negligent driving of vehicle no. HR63A4457 by R1 ....OPP
8. Aforesaid issues being interconnected are tried together for disposal. The onus to prove the aforesaid both the issues was on the respective petitioners.
9. PW2 Anil Kumar had witnessed the scene of the accident and had narrated the sequence of events in paragraph 1 of his affidavit Ex. PW2/A. His deposition has not been controverted by the respondent no.1 as he chose to stay away from the proceedings. Not only this, no question was put to him on the aspect of negligence by the R2 despite having been availed the opportunity. On being crossed examined by the counsel for R3/ insurance company, he sated that his statement was recorded in the police station on the same date. The police official had prepared the rough sketch of the scene of the accident in his presence. His statement assumes an importance for disposal of this issue as he was the author of the FIR bearing no. 43/10. PW 4 Sukan Yadav and PW 6 Mukesh Yadav through their respective affidavits corroborated the statement of the PW 2 Anil Kumar on the aspect of negligence. Further more they were the natural eye witness being the injured of the accident, therefore, I find no reason to disbelieve their testimonies
10. Besides this, the petitioners have proved the criminal record being forming part of the DAR such as charge sheet Ex.PA, FIR Ex. PB, mechanical Inspection report Ex. PC, site plan Ex. PD., MLCs of Sukan Yadav and Mukesh Yadav are Ex. PE and Ex. PF respectively and postmortem report of Narender is Ex.PG to establish the factum of the accident.
11. In Bimla Devi and others Vs. Himachal Raod Transport Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as MACP No. 227/10, 230/10 and 233/10) ( Page No.7 of Page no.31) -:8:- Pushpa Devi vs. Ram Kumar Yadav under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
12. The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011)
13. Having regards to these fact and circumstances, I am of the opinion that petitioners have been able to establish on record that accident did take place due to negligent driving of the offending vehicle at the given date, time and place.
14. In view of the above discussions, issue no. 1 in all the petitions is decided in favour of the petitioners and against the respondents. ISSUE NO 3 (This issue is same in all the petitions ) Whether the petitioners in the petition bearing no.
227/10, 230/10 and 233/10 are entitled to claim compensation if so, what amount and from whom ?
.....OPP
15. I will take this issue petitionwise.
PETITION NO. 233/10 TITLED AS Pushpa Devi & Ors vs. Ram Kumar Yadav MACP No. 227/10, 230/10 and 233/10) ( Page No.8 of Page no.31) -:9:- Pushpa Devi vs. Ram Kumar Yadav & Ors.
16. As issue no.2 is decided in favor of the petitioners in affirmative and thus, petitioners are entitled for the compensation. Quantum of the compensation however, is required to be calculated.
17. PW 1 Smt.Pushpa Devi had averred through afidaviat Ex. PW1/1 that deceased Sh. Narender was her husband and father of petitioners no.2 and 3 and son of the petitioner no.
4. She further stated that at the time of the accident her husband was 34 years old and had left behind the petitioners as his legal heirs. She also stated that there is no other legal heirs except the petitioners. I do not see any reason to disbelieve her statement qua the aforesaid facts as nothing contrary has been proved or shown.
18. It has been specifically averred that her husband was driving (TATA having 10 wheels) truck of the BK & DK property dealer of Shyam Vihar at the time of accident and his earning was Rs.10,000/ per month besides other facilities He was contributing his entire income towards household expenses.
19. To prove the age of the deceased, Ld. Counsel for the petitioner has relied upon the Driving License Ex. PW1/A of the deceased which finds mentioned his date of birth as 05.08.1978. If the age of the deceased is calculated on that basis then it came to 32 years approximately. An operative multiplier shall be '16' as per the judgment of Apex Court passed in Sarla Verma Vs. DTC and another (2009) 6 SCC 121.
20. The deceased has left behind his widow, two minor children and parents as legal heirs. 1/4 deduction towards the personal living expenses have to be made. I find support of MACP No. 227/10, 230/10 and 233/10) ( Page No.9 of Page no.31) -:10:- Pushpa Devi vs. Ram Kumar Yadav my view from the judgment of Sarla Verma ( supra).
21. In Rakhi v/s Satish Kumar & Othrs. And ICICI Lombard General Insurance Company v/s Rakhi & Ors. decided on 16.7.2012, his Lordship has pleased to observe in paragraph 20 as under: "In my view, there is no conflict between the earlier judgments of the Supreme Court in Susamma Thomas (supra), Sarla Dixit (supra) Bijoy Kumar Dugar (supra) and Sarla Verma (supra) which dealt with the increase in the income on account of future prospects and Santosh Devi (supra) which dealt with the increase in income due to inflation. Thus, on the basis of the judgment in Santosh Devi (supra) it can very well be said that the persons who are getting fixed salary or who are self employed as menial, skilled and unskilled workers, like barber, blacksmith, cobbler, mason, carpenter, etc. etc. would be entitled to an increase in the income to the extent of 30% on account of inflation when the deceased or the victim is aged upto 50 years."
22. The petitioner has categorically averred that her deceased husband was a driver by profession and thereby his approximate earning Rs.10,000/ per month at the time of accident. As there is no corroborative evidence with regard to the earning of the deceased, then regard is to be had to the minimum wages of an skilled worker. The minimum wages of skilled worker was Rs.6448/ as on 1.2.2010. The claimant would be entitled to an increase in MACP No. 227/10, 230/10 and 233/10) ( Page No.10 of Page no.31) -:11:- Pushpa Devi vs. Ram Kumar Yadav the income on account of inflation. In MAC APP No. 757/2011 titled Cholamandlam General Insurance company v/s Ram Kumar & Ors. Decided on 19.7.2012 by our own Hon'ble High Court after relying upon the judgment of Santosh Devi v/s National Insurance Company Ltd. & Ors. 2012 (4) Scale 559, has held that in case of self employed and persons having fixed income, an increase to the extent of 30% could be given towards inflation. After applying the ratio of the judgments (s), the average income of the deceased under the heads of Loss of dependency is commuted as under:
a) Minimum Wages of skilled as Rs. 6448.00/ on 01.02.2010 (+) 30% Future prospectus + 1934.4/ 8382.4/
c) 1/4 deductions on personal living expenses 2095.6/ Rs. 6286.8/ rounded off to Rs. 6287/
23. Keeping in view the above discussions, following sum shall be just compensation:
1 Loss of dependency (6287X16X12) = Rs. 12,07,104/ 2 Loss of Love and affection* = Rs. 25,000/ 3 For funeral expenses = Rs. 10,000/ 4 Loss of estate = Rs. 10,000/
5.Loss of Consortium = Rs. 10,000/ _______________________________________________________________________ MACP No. 227/10, 230/10 and 233/10) ( Page No.11 of Page no.31) -:12:- Pushpa Devi vs. Ram Kumar Yadav Total Rs. 12,62,104/ (Rupees Twelve lakhs, Sixty two thousand, one hundred and four sixty) _______________________________________________________________________ *Under the head of loss of love and affection only 25,000/ (in total to all the claimants) is granted after relying up on the judgment MAC APP. 891/2010 Rashmi Devi & Ors. Vs. Sanjeev Kumar & Ors. decided on 23/01/2012.
It includes the amount of interim award passed on 20.11.2010 APPORTIONMENT ( In petition bearing no. 233/11)
24. From out of the awarded amount, the petitioner no. 1 shall get Rs.9,62,104/(less Rs.50,000/ as the amount of interim award) with interest whereas petitioner nos. 2 to 4 shall be entitled to Rs. 1,00,000/ each with interest.
(PETITON NO 227/10 (Sukan Yadav vs. Ram Kumar Yadav & Ors)
25. As issue no. 1 is decided in affirmative, therefore, the petitioner has become entitled to be compensated. Now the question arises as to how much amount has to be awarded to him.
26. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
27. Before I, calculate the amount of compensation , it would be appropriate MACP No. 227/10, 230/10 and 233/10) ( Page No.12 of Page no.31) -:13:- Pushpa Devi vs. Ram Kumar Yadav to incorporate the observations made by the Hon'ble Supreme court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755. It was observed as under :
"In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning or profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
MACP No. 227/10, 230/10 and 233/10) ( Page No.13 of Page no.31) -:14:- Pushpa Devi vs. Ram Kumar Yadav
28. In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated above by Hon'ble Apex Court.
(a) LOSS OF MEDICINES AND TREATMENT
29. Petitioner Sukan Yadav in his affidavit Ex. PW4/A had averred that in the accident he had sustained fractures in both lower limbs and he was operated upon. A rod was inserted. He was taken to RTRM hospital where his MLC bearing no. 1669/10 Ex. PE was prepared and he was referred to DDU hospital for further treatment. It is further stated that he remained admitted in the hospital during period 29.05.2010 to 06.07.2010 where his operation was carried out. Discharge summary is proved Ex. PW 4/3. He had spent huge amount on his treatment. Medical Treatment record including medical bills are collectively Ex. PW 4/2 is proved.
30. Perusal of the evidence available on record, it appears that he did take place the expenses incurred on his treatment amounting to Rs.1504/. Considering the treatment record, I am of the opinion that he must have spent over and above the amount of the medical bills but I shall award a sum of Rs.1504/ towards medicines and treatment against the bills actually proved on record.
31. Now the question remains to be decided with regard the earning of the deceased. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased.
MACP No. 227/10, 230/10 and 233/10) ( Page No.14 of Page no.31) -:15:- Pushpa Devi vs. Ram Kumar Yadav
32. Before proceedings further, let me quote couple of relevant judgments:
In 2012 ACJ 583(SC)titled 'Mohan Soni v/s Ram Avtar Tomar & Ors.', their lordships were pleased to make the following observations:
"The loss of one of the legs either to the marginal farmer or the cycle rickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect.
The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of any of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller".
33. In Pati Ram Vs. Kushal Pal Singh reported in 2010 ACJ 1481 it has been held that ; Quantum - Injury Leg Amputation of both legs resulting in permanent disability of 85 % in relation to left lower limb and 70 per cent in relation to right lower limb Tribunal assessed loss of earning capacity at 85 per cent and taking income on the basis of minimum wages awarded Rs 5,59,062 towards loss of income due to permanent disability , Rs 10,000/ towards medical expenses , Rs 15,000/ conveyance and speical diet and Rs 1,00,000/ for pain and suffering Appellate court fixed loss of earning capacity at 100 per MACP No. 227/10, 230/10 and 233/10) ( Page No.15 of Page no.31) -:16:- Pushpa Devi vs. Ram Kumar Yadav cent and observing that minimum wages is not akin to future prospects computed loss of income due to permanent disability at Rs 9,86, 580/ plus awarded Rs 1,08,000/ towards conveyance , Rs 1,50,000/ towards pain and suffering Rs 1,00,000/ towards loss of amenities and Rs 50,000/ towards disfiguration Award enhanced from Rs 6,84,062 to Rs 13,94,580/.
In Gulam Nabi Bhat vs. Md. Arman Ali & Ors, MAC. App.335/2009 passed by Hon'ble High Court of Delhi decided on 07/08/2012, his Lordship was pleased to make following observations
14. For example, if the left hand of a claimant is amputated, the permanent physical of functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as inn the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with MACP No. 227/10, 230/10 and 233/10) ( Page No.16 of Page no.31) -:17:- Pushpa Devi vs. Ram Kumar Yadav lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
(b) LOSS OF INCOME ON ACCOUNT OF DISABILITY :
34. PW1 during the course of his deposition had stated that he was working as a labourer and was sitting in the cabin of the truck alongwith coworkers being labour on the date of the accident. He used to earn Rs.6000/ per month. As there is no corroborative documentary evidence with regard to his earning therefore, the regard is to be had to the minimum wages of unskilled person. The accident had taken place on 29.5.2010 and minimum wages of unskilled person were Rs.5278/ as on 01.02.2010. It is stated that due to the injuries sustained in an accident his both lower limbs affected and thus, he became unemployed being permanent disabled person. He is not in a position to perform the work of a labour. It is further argued that the minimum wages would go to increase due to inflation of rise in price index. An addition of 30% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.5278/ + 30% (Rs.1583.4/) which comes to Rs. 6861.4/ (rounded off to Rs.6861/).
Relevant paragraph 19 of the Judgment Gulam Nabi vs. Md. Arman Ali & Ors. (SUPRA) is hereby reproduced: This Court in Rakhi vs. Satish Kumar & Ors (MAC. APP.
390/2011) decided on 16.07.2012, referred to the reports of the Supreme Court in General lManager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and Ors.(1994) 2 SCC 176, Sarla Dixit vs. Balwant Yadav. (1996) 3 SCC 179, Bijoy Kumar Dugar MACP No. 227/10, 230/10 and 233/10) ( Page No.17 of Page no.31) -:18:- Pushpa Devi vs. Ram Kumar Yadav Vs. Bidya Dar Dutta & Ors., (2006) 3 SCC 242, Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Santosh Devi Vs. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and held that as per Santosh Devi even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed.
35. Besides this, petitioner has proved a disability certificate Ex.PW4/4 by examining Dr. Vineet Kumar, Junior Specialist, Ortho, DDU Hospital. According to Doctor, petitioner was found to have post operated fracture B/L tibia with painful movement in both lower ankles with 23% of permanent physical disability in relation to both lower limbs. The doctor further stated that in the present case the pain of the patient may sustain for more than one year after the injury and hence, his disability shall be considered as permanent in nature. His day to day activities have been affected as he was a labour by profession at the time of accident and hence, his disability is total.
36. As regards the age of the petitioner is concerned, the petitioner has relied upon the election Icard Ex. PX wherein his born year has been mentioned as 1979. If the age of the petitioner is calculated on that basis then it came to be less than 31 years. An operative multiplier shall be '16' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor wherein the disability has been stated as 23% and hence, compensation is granted Rs. 6861X23/100X16X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md.
MACP No. 227/10, 230/10 and 233/10) ( Page No.18 of Page no.31) -:19:- Pushpa Devi vs. Ram Kumar Yadav Arman & Ors (SUPRA) after relying upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)wherein their Lordships have pleased to make the following observations.
The provision of Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequence, is inevitable. A person is not only to be compensation for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
37. I, therefore, award a sum of Rs.3,02,981.76/ rounded off to Rs. 3,02,982/ to the petitioner towards loss of earnings due to disability. New India Assurance Co. Ltd. vs. Naresh Kumar & Ors MAC. APP. No. 493/2012 decided on 07.05.2012 (DHC) is relied upon.
MACP No. 227/10, 230/10 and 233/10) ( Page No.19 of Page no.31) -:20:- Pushpa Devi vs. Ram Kumar Yadav
d) PAIN & SUFFERING:
38. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
39. In the present case, it is apparent from the medical record proved by petitioner that he had sustained fractures in both lower limbs and he was operated upon. A rod was also inserted by operating upon. The mental agony which the petitioner might have undergone at the time of accident cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
40. To compensate the petitioner under this head, I award a sum of Rs.50,000/ to the petitioner for pain and suffering.
e) CONVEYANCE & SPECIAL DIET :
41. PW1 during the course of his deposition has failed to depose the amount spent by him on conveyance and special diet , however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him . I, therefore, award a sum of Rs 25,000/ to the petitioner towards Conveyance and special diet.
MACP No. 227/10, 230/10 and 233/10) ( Page No.20 of Page no.31) -:21:- Pushpa Devi vs. Ram Kumar Yadav
42. Keeping in view the above discussions, following sum shall be just compensation:
1 Loss of medicines and treatment = Rs. 1,504/ 2 Loss of earning on account of disability = Rs. 3,02,982/ 3 Pain and suffering = Rs. 50,000/ 4 Special Diet & Conveyance = Rs. 25,000/
5.Loss of Amenities = Rs. 25,000/ _______________________________________________________________________ Total Rs. 4,04,486/ (Rupees Four Lakhs Four Thousand Four Hundred & Eighty Six only) _______________________________________________________________________ Petition no. 230/10 titled as Mukesh Yadav v/s Ram Kumar Yadava & Ors.
LOSS OF MEDICINES AND TREATMENT
43. Petitioner Mukesh Yadav in his affidavit Ex. PW6/A had averred that in the accident he had sustained grievous injuries i.e. Multiple fractures on right hip / leg coupled with dislocation of fifth MT Compound Fracture, Back bone injuries, skin was peeled off from left feet and scar on forehead. After the accident, he was taken to RTRM Hospital, Jaffar Pur, Delhi and he was refferred to DDU Hospital after having been given preliminary treatment, however, his MLC Ex. PF was prepared. He remained admitted in the hospital during the period 29.5.2010 to 15.6.2010 and was operated for the accidental injuries. He also took the treatment from private doctors. He had spent Rs. 40,000/ on his medical treatment and pharmacy but the bills could not be preserved.
MACP No. 227/10, 230/10 and 233/10) ( Page No.21 of Page no.31) -:22:- Pushpa Devi vs. Ram Kumar Yadav
44. Perusal of the evidence available on record, it appears that he did not file the medical bills incurred on his treatment during the evidence. Considering the treatment record, I am of the opinion that he must have spent the huge amount on his treatment but I am unable to pass any award towards medicines and treatment in the absence of medical bills.
45. Now I shall deal with loss of earning of the petitioner. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased.
(c) LOSS OF INCOME ON ACCOUNT OF DISABILITY :
46. PW6 during the course of his deposition had stated that he was doing the job of labour work and his earning was Rs. 6,000/ per month besides overtime income. As there is no corroborative documentary evidence with regard to his earning therefore, the regard is to be had to the minimum wages of unskilled person. The accident had taken place on 29.5.2010 and minimum wages of unskilled person was Rs.5278/ as on 01.02.2010. It is stated that due to multiple fractures on right hip / leg coupled with dislocation of 5 th MT Compound fractures, he became unemployed. He is not in a position to perform the work of labour. It is further argued that the minimum wages would go to increase due to inflation of rise in price index. An addition of 30% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.5278/ + 30% (Rs.1583.4/) which comes to Rs. 6861.4/ (rounded off to Rs.6861/).
47. Besides this, petitioner has proved a disability certificate Ex. PW5/B by examining Dr. Vineet Kumar Arora, Junior Specialist Orthopedics DDU Hospital, New Delhi.
MACP No. 227/10, 230/10 and 233/10) ( Page No.22 of Page no.31) -:23:- Pushpa Devi vs. Ram Kumar Yadav According to Doctor, petitioner was found to have post traumatic dislocation of right hip joint (reduced) with fracture 5th metatastral left foot with 9% permanent physical disability. The doctor further stated that in the present case the pain of the patient may sustain for more than one year after the injury and hence, his disability shall be considered as permanent in nature. His day to day activities have been affected as he was a labour by profession at the time of accident and hence, his disability is total.
48. As regards the age of the petitioner is concerned, the petitioner has relied upon the Election ICard Ex. PY wherein his born year is mentioned as 1983. If the age of the petitioner is calculated on that basis then it came to be 27 years. An operative multiplier shall be '17' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor wherein the disability has been stated as 9% and hence, compensation is granted Rs. 6861X9/100X17X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md. Arman & Ors (SUPRA) after relying upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)(SUPRA).
49. I, therefore, award a sum of Rs.1,25,967.96/ (rounded off to Rs.1,25,968/) to the petitioner towards loss of earnings due to disability. New India Assurance Co. Ltd. vs. Naresh Kumar & Ors MAC. APP. No. 493/2012 decided on 07.05.2012 & Mohan Soni Vs. Ram Avtar & Ors 2012 ACJ 382 (SC) are relied upon.
(d) PAIN & SUFFERING: MACP No. 227/10, 230/10 and 233/10) ( Page No.23 of Page no.31) -:24:- Pushpa Devi vs. Ram Kumar Yadav
50. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
51. In the present case, it is apparent from the medical record proved by petitioner that he had sustained grievous injuries i.e. Multiple fractures on right hip / leg coupled with dislocation of fifth MT Compound Fracture, Back bone injuries sking was peeled off from left feet and scar on forehead. The mental agony which the petitioner might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
52. To compensate the petitioner under this head, I award a sum of Rs.50,000/ to the petitioner for pain and suffering.
(e) CONVEYANCE & SPECIAL DIET :
53. PW1 during the course of his deposition has failed to depose the amount spent by him on conveyance and special diet, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him. I, therefore, award a sum of Rs 25,000/ to the petitioner towards Conveyance and special diet.
MACP No. 227/10, 230/10 and 233/10) ( Page No.24 of Page no.31) -:25:- Pushpa Devi vs. Ram Kumar Yadav
54. Keeping in view the nature of injuries and nature of evidence following amount shall be just compensation:
1 Loss of earning on account of disability : Rs 1,25,968/
3. Pain and Suffering : Rs. 50,000/ 4 Special Diet & Conveyance : Rs. 25,000/ 5 Loss of amenities : Rs 25,000/ ____________________________________________________________________________ Total : Rs.2,25,968/ (Rupees Two Lakhs Twenty five Thousand Nine Hundred Sixty Eight only) INTEREST IN ALL THE PETITIONS
55. Petitions bearing no. 233/10 & 230/10 were filed on 3.8.2010 whereas petition no. 227/10 was filed on 2.8.2010. There is nothing on record to withhold the interest. All the petitioners are awarded interest at the rate of 7.5 % from the date of filing the petitions till the realization.
LIABILITY
56. Ld. Counsel for the insurance company had taken a stand while contending that the company had charged premium of one cleaner/conductor/coolies as per the policy of the schedule. Since there were four passengers travelling in the said vehicle at the time of the accident and the same is violation of the terms and conditions of the policy and hence MACP No. 227/10, 230/10 and 233/10) ( Page No.25 of Page no.31) -:26:- Pushpa Devi vs. Ram Kumar Yadav insurance company is not liable to pay any amount of compensation. To support his contention, R3W1/1 Sh. Vivek Yadav, Manager Legal was examined. On the other hand ld. Counsel for the petitioner has refuted the entire line of arguments while making submission that Rs.25/ was paid as premium for cleaner/conductor/coolies. He invited the attention of this court that it has not been specifically mentioned as to how many persons are covered under the premium of Rs. 25/. It is admitted as correct that the term "coolies" is correctly mentioned in the policy which is not mis print. It is stated that Rs.25/ had been charged for one person in addition to the driver as per IMT. The seating capacity of the vehicle involved in question was two as per the Certificate of Registration meaning thereby one more person could travel in addition to the driver. In the instant case, three petitions were filed with regard to the injuries sustained in the accident occurred on the same date with the negligent driving of the vehicle in question. As per the insurance company premium of Rs.25/ towards legal liability of one more person for operation/maintenance was charged. In any case, even if no separate premium is charged for another worker, risk is required to be covered for the owner of the goods by Section 147(i)(b)(i) of the Motor Vehicle act as amended w.e.f. 14.11.1994.
57. Admittedly the offending vehicle was being driven by R1 and owned by R3 therefore, R1, is the principal tort feasor. R2 & R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the vehicle was injured with R3, therefore, it shall pay the awarded amount, however, the insurance company can recover the amount of Rs.2,25,968/ pertaining to the petition no. 230/10, Mukesh Yadav vs. Ram Kumar Yadav & Ors. from the insured (R2) after paying the same to claimant after MACP No. 227/10, 230/10 and 233/10) ( Page No.26 of Page no.31) -:27:- Pushpa Devi vs. Ram Kumar Yadav relying upon the judgement "National Insurance Co. Ltd. Vs. Anjana Shyam & Ors. AIR 2007 SC 2870" wherein it was held that the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance company obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfill his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
58. In view of the above discussions, issue no. 2 is decided in favour of the petitioner MACP No. 227/10, 230/10 and 233/10) ( Page No.27 of Page no.31) -:28:- Pushpa Devi vs. Ram Kumar Yadav and against the respondents.
59. Issue No.2 is decided in favour of the petitioner accordingly. ISSUE NO 3 RELIEF
60. In view of findings on issues no 1 and 2 , this issue is also decided in favour of the petitioners and against respondents.
61. In petition bearing no. 233/10, titled as Pushpa Devi & Ors. vs. Ram Kumar Yadav & Ors Rs. 12,62,104/(Rupees Twelve lakhs, Sixty two thousand One hundred four only) with interest is awarded in favour of the petitioners and against the respondents.
62. In petition no. 227/10, Sukan Yadav vs. Ram Kumar Yadav & Ors, Rs. 4,04,486/ (Rupees Four lakhs, four thousand, four hundred and eighty six only) with interest is awarded in favour of the petitioner and against the respondents.
63. In petition no. 230/10, Mukesh Yadav vs. Ram Kumar Yadav & Ors, Rs. 2,25, 968/ (Rupees Two lakhs, twenty five thousand, nine hundred and sixty eight only) with interest is awarded in favour of the petitioner and against the respondents. ( In petition bearing no. 233/10)
64. The awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation to the MACP No. 227/10, 230/10 and 233/10) ( Page No.28 of Page no.31) -:29:- Pushpa Devi vs. Ram Kumar Yadav Nazir of this Court. In petition bearing no. 233/11, titled as Pushpa Devi & Ors. vs. Ram Kumar Yadav & Ors., SBI Branch is directed to release Rs. 1,12,104/ with interest to the petitioner no.1 by transferring the same to her Saving Bank Account after keeping the remaining amount in a fixed deposit in her name in the following manner: a Amount of Rs.2,00,000/ in FD for a period of two year. b Amount of Rs.2,00,000/ in FD for a period of three year. c Amount of Rs.2,00,000/ in FD for a period of five years. d Amount of Rs.2,00,000/ in FD for a period of Six years.
65. Half of the awarded amount along with interest shall be released to the petitioner no. 4 after retaining the remaining half in her name in the shape of FDR for a period of two year. Petitioners no. 2 and 3 are minor children of deceased, therefore, their share shall be kept in the shape of FDR in their respective names till they attain the age of 18 years.
66. In petition bearing no. 227/10, titled as Sukan Yadav vs. Ram Kumar Yadav & Ors, , the awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs.1,04,486/ with interest to the petitioner by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in his name in the following manner: a Amount of Rs.1,00,000/ in FD for a period of one year. b Amount of Rs.1,00,000/ in FD for a period of two year. c Amount of Rs.1,00,000/ in FD for a period of three years.
MACP No. 227/10, 230/10 and 233/10) ( Page No.29 of Page no.31) -:30:- Pushpa Devi vs. Ram Kumar Yadav
67. In petition bearing no. 230/10, titled as Mukesh Yadav vs. Ram Kumar Yadav & Ors., the awarded amount be deposited by R3 with State Bank of India, Dwarka Court Complex Branch, Sector10, New Delhi within 30 days from today under intimation to the Nazir of this Court. Upon the aforesaid amount being deposited, SBI Branch is directed to release Rs. 1,25,968/ with interest to the petitioner by transferring the same to his Saving Bank Account after keeping the remaining amount in a fixed deposit in his name in the for a period of one year.
68. The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the respective Savings Account of the beneficiaries.
69. Withdrawal from the aforesaid account shall be permitted to the beneficiaries after due verification and the Bank shall issue photo Identity Cards to the beneficiaries to facilitate identities.
70. No cheque books shall be issued to the beneficiaries without the permission of this Court.
71. The original fixed deposit receipts shall be retained by the Bank in the safe custody. However, the original Pass Book shall be given to the beneficiaries along with the photocopy of the FDRs. Upon the expiry of the period of each FDR, the Bank shall automatically credit the maturity amount in the Savings Account of the beneficiaries.
72. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the prior permission of this court.
MACP No. 227/10, 230/10 and 233/10) ( Page No.30 of Page no.31) -:31:- Pushpa Devi vs. Ram Kumar Yadav
73. On the request of the beneficiaries, Bank shall transfer the Savings Account to any other branch according to their convenience.
74. The beneficiaries shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account.
75. R3 shall inform the petitioners (in both the petitions) through registered post that the cheques of the awarded amount are being deposited so as to facilitate them to collect their cheques.
76. Copy of the award be supplied to both the parties at free of cost.
77. Attested copies of this judgment shall be kept in the connected cases.
78. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED: 11.02.2013 PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
MACP No. 227/10, 230/10 and 233/10)
( Page No.31 of Page no.31)