Delhi District Court
Karan Singh vs . National Insurance Co. on 17 December, 2011
Karan Singh Vs. National Insurance Co.
1
IN THE COURT OF SH. SANJIV JAIN : PRESIDING OFFICER : MACT 02
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Petition No. 237/10
1. Sh. Karan Singh S/o Sh. Nand Lal
2. Smt. Maya Devi W/o Sh. Karan Singh
Both R/o H. No. 417/20, Shanti Nagar,
Gurgaon, Haryana - 122 001
Petition No. 226/10
1. Veena Sharma W/o Late Raj Kumar
2. Vedika D/o Late Raj Kumar
3. Janvi D/o Late Raj Kumar
4. Sarla Devi W/o Late Nanak Chand Sharma
5. Preeti D/o Late Nanak Chand Sharma
6. Dezi D/o Late Nanak Chand Sharma
All R/o Ward No. 12, Sector, Near Shiv Kund, Sohana
Distt. Gurgaon, Haryana
Petition No. 228/10
1. Sh. Dharamveer S/o Sh. Virender Chatwal
R/o 78, Manocha Apartments,
FBlock, Vikaspuri,
New Delhi - 110 018
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 1/36
Karan Singh Vs. National Insurance Co.
2
Petition No.227/10
1. Sumit Sharma S/o Sh. Naresh Sharma
R/o Baluda Road, Near Dharam Vatika
Friends Colony, Sohna, Gurgaon
Petition No. 238/10
1. Puneet Sharma S/o Late Suresh Sharma
R/o Kathmandi, Charkhi Dadri,
Distt. Bhiwani, Haryana
Petition No. 936/10
1. Suresh Kumar S/o Sh. Ganesh Prasad
D209, Ganesh Nagar, Pandav Nagar Complex,
Delhi.
...... Petitioners
Versus
1. National Insurance Co. Ltd.
1, Jeevan Bhari Building,
TowerII, 4th Floor,
Cannaught Place, New Delhi
And Div. No. 10, Flat No. 101106,
N1, B.M.C. House,
Cannaught Place, New Delhi
2. Sh. Rameshwar S/o Sh. Nathu Singh
R/o 24, Vill. Asthalpur, Khawad,
P.O. Daulatpur, New Delhi - 43
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 2/36
Karan Singh Vs. National Insurance Co.
3
3. Tejpal S/o Late Hardwari Lal
R/o H. No. 517, Uprai Mohalla,
Mahipal Pur, New Delhi - 37.
...... Respondents
Date of Institution : 22.04.09 (Petition No. 237/10)
14.05.09 (Petition No. 226/10)
04.04.09 (Petition No. 228/10)
14.05.09 (Petition No. 227/10)
15.05.09 (Petition No. 238/10)
06.02.10 (Petition No. 936/10)
Date of reserving of judgment/order : 30.11.2011
Date of pronouncement : 17.12.2011
J U D G M E N T :
1. Vide this common judgment, I shall dispose off the above stated petitions filed under Section 166 and 140 of Motor Vehicle Act, 1988, as amended upto date (herein after referred to as Act), as the same have emerged out of the road accident which occurred on 28.02.09 at about 01.00 AM at National Highway No.8, in front of Nitesh Kunj, Rangpuri whereby the petitioners have claimed compensation for untimely death of Rajesh Kumar and Raj Kumar and injuries on the persons of Dharamveer, Sumit Sharma, Puneet Sharma and Suresh Kumar.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 3/36 Karan Singh Vs. National Insurance Co.
4
2. Adumbrated in brief, the facts leading to the above stated petitions are that on 28.02.09 at about 01.00 AM, the petitioner Dharamveer was going to Gurgaon in his car DL 4C M 4185. In front of Nitish Kunj, Rangpuri at National Highway No.8, his car suddenly stopped. A car bearing no. HR 26 AK 3654 came from behind and hit his car. Dharamveer and driver of the other car drove their car on the side of the road. Three boys were coming in a TSR DL 1R K 8170. When they were trying to settle the matter, in the meantime a Maruti Esteem car DL 2C AG 6006 came at a very fast speed being driven by respondent no.3 in a rash and negligent manner and hit all of them. Due to the sudden and heavy impact, Dharamveer and others sustained multiple injuries. They were removed to Safdarjung hospital where Rajesh Kumar and Raj Kumar were declared dead. A case vide FIR 70/2009 was registered at the Police station Vasant Kunj. It was stated that respondent no.2 was the owner of the offending vehicle and it was insured with respondent no.1.
3. The deceased Rajesh Kumar was 23 years of age. He was unmarried. He had been doing private work and earning Rs. 20,000/ p.m. He had a good physique and sound health. The deceased Raj Kumar was 24 years of age. He was also doing private job and earning Rs. 20,000/ p.m. He was survived by his mother, wife, two minor daughters and two unmarried sisters. Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 4/36 Karan Singh Vs. National Insurance Co.
5It was stated that the LR's of deceased were fully dependent on the income of the deceased. Due to their sudden death, their hopes and expectations have shattered.
4. It was stated by the petitioner Dharamveer that he sustained grievous injuries in the accident. He spent a huge sum on his treatment. He had been doing private business and earning Rs. 25000/ p.m. It was stated by petitioner Sumit Sharma that he sustained fracture in his right elbow. He had been earning Rs. 6000/ p.m. from his private job. He was operated and an iron rod was inserted in his right elbow. It was stated by Puneet Sharma that he had been doing private job and earning Rs. 6000/ p.m. Due to the injuries, he lost his earning capacity and he is still under treatment. It was stated by Suresh Kumar that he had been running TSR. He sustained injuries on his head, back and right leg. He incurred Rs. 1,00,000/ on his treatment. By driving TSR he used to earn Rs. 7000/ p.m.
5. Notice of the petitions was given to the respondents.
6. All the respondents contested the petitions and filed their written statements denying the allegations and the claim of the petitioners. It was stated by respondent no.1 that four vehicles were involved in the accident, however, Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 5/36 Karan Singh Vs. National Insurance Co.
6the petitioners have impleaded only the driver / owner / insurer of the Maruti Esteem car DL 2C AG 6006 although the driver / owner / Insurer of the other vehicles were the necessary parties. It was however, admitted that the offending vehicle was insured with respondent no.1 vide policy no. 351010/31/08/6103607009 for the period from 01.03.08 to 28.02.09 in the name of respondent no.2. It was stated on behalf of respondent no.2 and 3 that no such accident as alleged in the petitions has ever taken place due to rash and negligent driving of the alleged offending vehicle. It was stated that the vehicle no. DL 2C AG 6006 has been falsely involved to claim the compensation.
7. Vide order dated 21.11.09, all the petitions were consolidated and the case titled "Puneet Sharma Vs. National Insurance Company & Ors." was ordered to be treated as a lead case. An accident information report was also filed by the SHO PS Vasant Kunj which was annexed with the above case.
8. From the pleadings of the parties, following issues were framed vide order dated 21.11.09 and 07.10.2010 :
1. Whether Raj Kumar @ Raj Kumar Sharma, Rajesh Kumar @ Rajesh sustained fatal injuries and Puneet Sharma, Dharamveer, Sumit Sharma and Suresh Kumar sustained Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 6/36 Karan Singh Vs. National Insurance Co.
7injuries in an accident on 28.02.09 near NH8, Delhi to Gurgaon road in front of Nitish Kunj, Rangpuri, New Delhi due to rash and negligent driving of vehicle no. DL 2C AG 6006 driven by R3, Vehicle owned by R2, insured by R1?
2. If so, what amount of compensation, petitioners are entitled to and from whom ?
3. Relief.
9. The parties were thereafter, called upon to substantiate their case by leading their evidence. The petitioners namely Karan Singh (petition no. 237/10), Veena Sharma (petition no. 226/10), Dharamveer, Sumit Sharma, Puneet Sharma and Suresh Kumar tendered their individual affidavits Ex.PW1/A and the documents wherein they reiterated the facts as stated in the petitions. Karan Singh stated that he has five children. The deceased Rajesh was his third son. He had been studying in Nirankari college at Sohna as a regular student. He was also doing a private job of computers. Smt. Veena Sharma stated that her husband had passed 12th class examination. He had been working in a shop at Sohna and earning Rs. 20000/ p.m. However, she stated that she does not have any record of his salary. She stated that she does not know whether her husband was income tax payee or not. The Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 7/36 Karan Singh Vs. National Insurance Co.
8petitioners also examined Sh. S Shome, MRT from Safdarjung Hospital. He brought the record of admission of the petitioner Dharamveer as per which Dharamveer was admitted on 28.02.09. He had fracture in both bones of his legs and G.T right humerous. He was discharged on 04.03.2009. He placed on record the discharge summary of Dharamveer Ex.PW6/A. He stated that the medicines and the fixtures were arranged by the petitioner himself. Petitioners Sumit Sharma, Puneet Sharma and Suresh Kumar stated that they do not have any documentary proof as to their income. Suresh Kumar stated that he was having a driving license but not in respect of a commercial vehicle.
10. No witness was examined by the respondents.
11. I have heard the arguments advanced by Ld. counsel Ms. Kanta Chaudhary for the petitioners, Sh. Dalbir Singh for respondent no.2 and 3 and Sh. Ashutosh Gupta for the respondent no.1.
12. It is submitted by Ld. Counsel for the petitioners that the offending vehicle was being driven in a rash and negligent manner by respondent no.3. The accident resulted in the death of two persons and multiple injuries on four persons. The petitioners (Petition no. 237/10 and 226/10) were financially Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 8/36 Karan Singh Vs. National Insurance Co.
9and emotionally dependent on the deceased. Ld. Counsel stated that the injuries caused lot of pain and sufferings to Dharamveer, Sumit Sharma, Puneet Sharma and Suresh Kumar as they could not do their work for quite a long time and thus suffered financial loss. They also incurred huge expenditure on their treatment, diet and conveyance.
13. Ld. Counsel for respondent no.1 stated that the parents of the deceased Rajesh were not financially dependent on him. It has come in the testimony of Karan Singh that the deceased was studying in a college as a regular student. The petitioners did not file any proof in support of their income. So, minimum wages may be taken for calculating the loss of dependency/loss of income. Ld. counsel for respondent no.1 has stated that four vehicles were involved in the accident but the petitioners did not implead the other vehicles or the insured / insurer though they were the necessary parties.
14. I have considered the submissions. My findings on the issues are as follows :
I S S U E N O. 1
15. It is well settled law that where a petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 9/36 Karan Singh Vs. National Insurance Co.
10negligent driving. To prove rash and negligent driving in a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. The proceedings under Motor Vehicles Act are not akin to the proceedings in a civil suit. Further, roving enquiry is not required to prove the rashness and negligence on the part of the driver as has been held in Kaushumma Begum and others Vs New India Assurance Co. Ltd. 2001 ACJ 421 SC.
16. The petitioners Dharamveer, Puneet Sharma, Sumit Sharma and Suresh Kumar have stated that on 28.02.09 at about 1.00 AM when they were standing on the side of the road at NH8, from Delhi to Gurgaon in front Nitish Kunj, Rangpuri, the offending vehicle i.e. Maruti Esteem car DL 2C AG 6006 came all of a sudden being driven at a fast speed and in a rash and negligent manner by respondent no.3 and hit all of them. They stated that due to this forceful impact, they sustained multiple injuries. They were removed to Safdarjung hospital where their MLCs were prepared. Testimony of PW Karan Singh and Veena Sharma reveal that Rajesh Kumar and Raj Kumar were declared dead at Safdarjung hospital. Their postmortem was conducted. The petitioners have also filed the certified copy of the report U/s Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 10/36 Karan Singh Vs. National Insurance Co.
11173 Cr.P.C. of the case FIR 70/09 registered at the police station Vasant Kunj of this incident. Perusal of it reveals that the case was registered on the statement of Dharamveer. He had stated that on 28.02.09 at about 01.00 AM, he was going to Gurgaon in his car DL 4C M 4185. In front of Nitish Kunj, Rangpuri at National Highway No.8, his car suddenly stopped. A car bearing no. HR 26 AK 3654 came from behind and hit his car. He and the driver of the other car parked their car on the side of the road. Three boys were coming in a TSR DL 1R K 8170. When they were trying to settle the matter, in the meantime a Maruti Esteem DL 2C AG 6006 came at a very fast speed being driven by respondent no.3 in a rash and negligent manner and hit all of them. The investigating officer had prepared the site plan of the place of incident. Perusal of it also reveals that the vehicles of Dharamveer and others were standing on the side of the road. The offending vehicle had come from the same side and hit them. As per the postmortem report of the of the deceased Rajesh Kumar, he had multiple injuries. The cause of death was opined as cerebral damage due to head injury possible due to blunt force impact. The cause of death of Raj Kumar was opined as shock as a result of antemortem injuries to his both lungs rib cage produced by blunt force impact. The injuries on the person of Suresh, Dharamveer, Sumit Sharma and Puneet Sharma were opined as grievous. The mechanical inspection report of the vehicles show that the TSR and the car DL 4C M Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 11/36 Karan Singh Vs. National Insurance Co.
124185 were badly damage from their rear side. There were fresh damages on the front portion of the offending vehicle. Nothing material came in the crossexamination of the petitioners to draw an inference that accident did not take place due to rash and negligent driving of the offending vehicle by respondent no.3. Further, no evidence contrary to this deposition has been brought on record by the respondents. The report U/s 173 Cr.P.C. clearly shows that the accident had occurred due to rash and negligent driving of Maruti Esteem car no. DL 2C AG 6006 by respondent no.3. Hon'ble High Court of Delhi in case titled ''National Insurance Company Limited V/s Pushpa Rana'' reported as 2009 ACJ 287 has held that whenever criminal proceedings are placed on record on completion of investigation by the police, then that in itself is sufficient proof of the negligent driving of driver of the offending vehicle involved in the accident.
17. It was contended by Ld. Counsel for insurance company that the driver/owner and insurer of the other vehicles were not impleaded as parties. Perusal of the record reveals that the accident had occurred due to the rash and negligent driving of the offending vehicle by respondent no.3 only. It is not the case that the other vehicles were being driven in a rash and negligent driving which resulted in the accident, rather from the testimony of the petitioners and the report U/s 173 Cr.P.C. I find that the other vehicles were Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 12/36 Karan Singh Vs. National Insurance Co.
13standing on the side of the road when they were hit by the offending vehicle. That being the position, I am not in agreement with the contention of Ld. Counsel that the driver/owner/insurer of the other vehicles are the necessary parties to be impleaded in the present petitions. I am of the view that the petitioners have rightly impleaded respondents no.1 to 3 as necessary parties.
18. Viewed thereof, it is established that the offending vehicle i.e. DL 2C AG 6006 was very much involved in the accident which led to the untimely death of Rajesh Kumar and Raj Kumar and grievous injuries on the persons of Dharamveer, Sumit Sharma, Puneet Sharma and Suresh Kumar. It is also established that the respondent no.3 was driving the offending vehicle at the time of the accident. It is an admitted position on record that the offending vehicle was owned by respondent no.2 and it was insured with respondent no.1. Thus, issue no.1 is decided in favour of petitioners and against the respondents.
I S S U E No. 2 Petition No. 237/10 and 226/10
19. Where death of a person takes place in an accident involving use of offending vehicle, his Legal Heirs are entitled to be compensated by the driver and owner being jointly and severally liable. The amount of Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 13/36 Karan Singh Vs. National Insurance Co.
14compensation no doubt cannot bring back the dead but it certainly helps the LR's and dependents to live life with dignity and comfort as they were living during the lifetime of the deceased. The amount of compensation is awarded on the basis of age, the earning capacity and other liabilities of the deceased. The appropriate method of calculating compensation in fatal cases is multiplier method. The Hon'ble Supreme Court in plethora of judgments has laid down that in India, the multiplier method is proper for calculation of compensation.
20. Starting point for calculating the amount of compensation to be paid to the dependents of the deceased in a motor accident claim is the amount of monthly income which the deceased was earning and the choice of multiplier is ascertained by the age of the deceased.
Petition no. 237/10
21. Testimony of PW Karan Singh reveals that the deceased was 21 years of age at the time of accident. He was pursuing his BCA from Nirankari Baba Gurbachan Singh Memorial College at Sohna which was affiliated to MD University, Rohtak. He was a final year student. In this case the petitioner has filed a certificate issued by Rentech Designs India Pvt. Ltd. dated 19.02.09 as per which the deceased was offered a job of a Manager on a Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 14/36 Karan Singh Vs. National Insurance Co.
15salary of Rs. 20000/ p.m. for a period of one year. Although he did not examine anyone from the aforesaid company to prove this fact but the educational qualification certificate of the deceased shows that the deceased was a meritorious student. Had he completed his BCA, he would have been offered a good job. He had a good prospects to excel. It is true that the deceased was the third son of the petitioner Karan Singh but from this it cannot be inferred that the petitioners were not financially and emotionally dependent on him. I do not agree with the contention of the Ld. Counsel for insurance company that in this case notional income @ Rs. 15000/ be taken for calculating the loss of dependency as in the present case the deceased had been pursuing his professional course and would have been well placed after completing his course which fact has been proved by the petitioner by placing on record the document Ex.PW1/2. Looking into all these facts and circumstances, the age of the deceased and his educational and professional qualification, the income of the deceased is taken as Rs. 15000/ p.m. for calculating the loss of dependency. As per the ration card, the age of the mother of deceased as on the date of accident was 48 years. The deceased was a bachelor and the claimants are the parents and the siblings. It was held in the case of Sarla Verma Vs. DTC 2009 (3) Scale 129 that in regard to the bachelor, normally 50 per cent is deducted as personal and living expenses because it is assumed that a bachelor would Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 15/36 Karan Singh Vs. National Insurance Co.
16tend to spend more on himself. Even otherwise, there was a possibility of his getting marriage in a short time, in which time the contribution to the parents and siblings would be cut drastically. It was also held that even if the deceased is survived by parents and siblings, only the mother would be considered as dependent and 50 per cent would be treated as personal and living expenses of the bachelor and 50 per cent as the contribution to the family. It was also held that while calculating the dependency, the multiplier is to be applied with reference to the age of the mother in the case of a bachelor. In the present case, as evident from the record, the mother of the deceased was 48 years as on the day of death of the deceased. Hence, a multiplier of '13' is taken for calculating the loss of dependency.
22. After deducting 50 per cent towards personal & living expenses, the net income for calculating the loss of dependency comes to Rs. 15000 - 50% of 15000 = Rs. 7500/. Using the multiplier of 13, the total loss of dependency comes to Rs. 7500 x 12 x 13 = 11,70,000/
23. I therefore, award a sum of Rs. 11,70,000/ to the petitioners towards "Loss of Dependency".
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 16/36 Karan Singh Vs. National Insurance Co.
17Petition no. 226/10
24. Testimony of PW Veena Sharma shows that her husband had passed 12th class examination. He had been working in a shop at Sohna. PW Veena Sharma has stated that her husband had been earning Rs. 20000/ p.m. In the instant case, no documentary proof of income has been filed by PW1 with respect to the income of the deceased. In the absence of any documentary evidence on record, regard is to be had to the minimum wages prevailing at the time of accident with respect to a "matriculates" which as per the schedule is 4,382/ p.m. The deceased was a young man and he had a bright future. His date of birth as per the driving license and matriculation certificate was 12.06.78.
25. Hon'ble High Court of Delhi in case titled "Narender Bishal & Another V/s Sh. Ramit Singh & Ors." bearing MAC.App. No.100708/2006 decided on 20th February 2008 had considered the law laid down by Hon'ble Supreme Court in "General Manazger Kerala Transport Road Corporation V/s. Susamma Thomas" reported as 1994 ACJ 1 (SC) as well as in Smt. Sarla Dixit & Ors. V/s Balwant Yadav & Ors. Reported as AIR 1996, SC1274" and held :
"As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 17/36 Karan Singh Vs. National Insurance Co.18
with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career.
The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of minimum wages giving some periodical increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects.
For instance, minimum wages of unskilled workman in the year 2000 were Rs.2524/ under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman came to be Rs.3470/ under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in price index and cost of living which Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 18/36 Karan Singh Vs. National Insurance Co.19
are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects of a skilled, semiskilled or an unskilled workman."
26. In view of above and considering the fact that minimum wages gets doubled in a ten years time, therefore for the purposes of calculation of the average gross income of the deceased, the criteria laid down by Hon'ble Supreme Court in "Smt. Sarla Dixit & Ors. V/s. Balwant Yadav & Ors. Case (supra) is to be applied.
27. In the present case, minimum wages prevailing at the time of accident with respect to a "matriculate" was Rs. 4,382/. Taking into account the denunciation in the value of currency, gross monthly income of the deceased comes to Rs. 4,382 + 50% of Rs. 4,382 = Rs. 6,573.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 19/36 Karan Singh Vs. National Insurance Co.
20
28. In the present case the deceased was a married and the claimants are the wife, two minor daughters, mother and two unmarried sisters of the deceased. Out of this gross income of deceased Raj Kumar and considering that wife and other legal heirs of deceased were dependent on him, he then by no stretch of imagination would have spent more than onefourth of his earning on himself. In view thereof, monthly loss of dependency of the petitioners would come to Rs. 6,573 - 1,643 [1/4th of 6,573] = Rs. 4,930/. Yearly loss of dependency would come to Rs. 4,930 x 12 = Rs. 59,160. Since the deceased was 31 years of age at the time of accident, using the multiplier of '16', the total loss of dependency comes to Rs. 9,46,560/ (16 x 59,160/) which is rounded off as Rs. 9,46,600/.
29. I therefore, award a sum of Rs. 9,46,600/ to the petitioners towards "Loss of Dependency".
Petition no. 226/10 COMPENSATION TOWARDS LOSS OF CONSORTIUM
30. I award a sum of Rs. 10,000/ to the petitioner No. 1 on account of "Loss of Consortium".
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 20/36 Karan Singh Vs. National Insurance Co.
21Petition no. 237/10 and 226/10 COMPENSATION TOWARDS FUNERAL EXPENSES
31. I award a sum of Rs. 10,000/ to the petitioners on account of "Funeral Expenses" .
Petition no. 226/10 and 237/10 COMPENSATION TOWARDS LOSS OF LOVE AND AFFECTION
32. The petitioner no.1 (petition no. 226/10) at this stage of her life lost her husband on whom she was emotionally and financially dependent. The loss of love and affection which the children/unmarried sisters would have got from the deceased can not quantified in terms of money. The support which the old and feeble parents could gt from their son could be quantified in terms of money. It has been held by Hon'ble High Court of Delhi in the case titled Kailash Kaur Vs. New India Insurance Company bearing M.A.C Pet. No. 318/08 decided on 24.03.2009 that compensation towards loss of love and affection should be granted at the rate of Rs. 25,000/ per petitioner.
33. I therefore award a sum of Rs. 1,50,000/ to the petitioners (Petition no.
226/10) and Rs. 50,000/ to the petitioners (Petition no. 237/10) towards "Love and Affection".
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 21/36 Karan Singh Vs. National Insurance Co.
22Petition no. 237/10 and 226/10 LOSS OF ESTATE
34. I award a sum of Rs. 10,000/ to the petitioners towards Loss of Estate.
35. Thus, the total compensation awarded in favour of the petitioners is assessed as under : Petition No. 237/10 Petition No. 226/10
1) Loss of Depedency : Rs. 11,70,000/ Rs. 9,46,600/
2) Loss of Consortium : Rs. 10,000/
3) Funeral Expenses : Rs. 10,000/ Rs. 10,000/
4) Loss of Love & Affection: Rs. 50,000/ Rs. 1,50,000/
5) Loss of Estate : Rs. 10,000/ Rs. 10,000/ : ============ ============= Total : Rs. 12,40,000/ Rs. 11,26,600/ Less (Interim compensation awarded vide order dated 10.08.2010) Rs. 50,000/ Rs. 50,000/ ============ ============ Rs. 11,90,000/ Rs. 10,76,600/ ============ ============
36. Issue No. 2 is accordingly decided in favour of the petitioners and against the respondents.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 22/36 Karan Singh Vs. National Insurance Co.
23In petition No. 228/10, 227/10, 238/10 and 936/10
37. The petitioners have claimed compensation in respect of the injuries sustained by them. It is true that when a person is injured in a road accident, he is entitled to the compensation for the pecuniary and non pecuniary damages.
38. It has been held by Hon'ble Apex Court in R.O. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, ie. on account of injury the normal longevity of the person concerned is shortened; (iv) Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 23/36 Karan Singh Vs. National Insurance Co.
24inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
COMPENSATION FOR EXPENSES INCURRED ON MEDICAL TREATMENT :
Petition No. 228/10
39. The petitioner Dharamveer has stated that due to the accident he sustained multiple injuries. He was removed to Safdarjung hospital where his MLC was prepared. He also filed the medical record. As per the MLC he sustained grievous injuries. He had fracture in tibia, fibula and femur of right leg. A rod / plate was inserted. He remained admitted in the hospital from 28.02.09 to 04.03.09. He also examined PW S. Shome who brought the discharge summary of the petitioner Ex.PW6/A. The petitioner has filed bills of Rs. 14,209/ and the documents showing that he followed up his treatment till 18.09.09. Looking into his injuries and followup treatment, I award a sum of Rs. 20,000/ to the petitioner Dharamveer towards Medical Expenses. Petition No. 227/10
40. The petitioner Sumit Sharma has stated that in the accident he sustained fracture in his right elbow. He was removed to Safdarjung hospital where his MLC was prepared. He filed the medical documents which show fracture in Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 24/36 Karan Singh Vs. National Insurance Co.
25his right elbow. He got treatment from Sir Ganga Ram Healers Hospital and filed a bill of Rs. 26350/. He was admitted on 04.03.09 and discharged on 06.03.09. He followed up his treatment as an OPD patient. He also purchased a Distal humeral plating with locking healed screws for Rs. 35,360/. Looking into the injuries and followup treatment, I award a sum of Rs. 65,000/ to the petitioner Sumit Sharma towards Medical Expenses.
Petition No. 238/10
41. The petitioner Puneet Sharma has filed his MLC/OPD card, as per which he had fracture in fibula. He got treatment from Safdarjung hospital. Although the petitioner did not file any medical bills but looking into the injuries and his followup treatment, I award a sum of Rs.10,000/ towards Medical Expenses.
Petition No. 936/10
42. The petitioner Suresh Kumar has stated that he had incurred more than Rs.
1,00,000/ on his treatment. He sustained injuries on his head and right leg. He placed his MLC Ex.PW1/7 as per which he had fracture in his right leg. He remained admitted in Safdarjung hospital for about 15 days. The doctor had opined the injuries grievous on his person. He also followedup the Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 25/36 Karan Singh Vs. National Insurance Co.
26treatment from other hospital as an OPD patient. He filed the medical bills for Rs. 23,118/. Looking into the injuries and the documents filed by him I find that he might have spent much more. I, therefore, award a sum of Rs. 25,000/ towards medical expenses.
In Petition no. 228/10, 227/10, 238/10 and 936/10 COMPENSATION FOR PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
43. The medical record of the petitioners indicate that the petitioners were hale and hearty before the accident. They sustained multiple injuries and fractures. They remained in the hospital for quite a long time. They attended the hospital as an outdoor patient. The injuries had caused them lot of pain and mental agony. Taking into consideration their multiple injuries, I award a sum of Rs. 30,000/ each to the petitioners towards pain and suffering and enjoyment of life.
COMPENSATION FOR SPECIAL DIET, ATTENDANT CHARGES AND CONVEYANCE CHARGES :
44.The petitioners have stated that after the accident they were taken to Safdarjung hospital. They sustained grievous injuries. The petitioner Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 26/36 Karan Singh Vs. National Insurance Co.
27Dharamveer had compound fracture in his right leg. A rod/plate was inserted. He remained admitted in the hospital for about 5 days. He attended the hospital as an out door patient till 18.09.09. The petitioner Puneet had fracture in Fibula bone of left leg. The petitioner Sumit had fracture in his right elbow. A screw / plate was inserted in his right elbow. The petitioner Suresh had fracture in his right leg. He remained in the hospital for two days. The petitioners had taken the help of attendant in their day to day work. Medical record reveals that they were advised special diet for early recovery. They attended the hospital as an outdoor patient. Taking into consideration all these facts, I award a sum of Rs. 20,000/ each to the petitioner Dharamveer, Sumit and Suresh Kumar and Rs. 15,000/ to the petitioner Puneet towards special diet, conveyance and attendant charges.
COMPENSATION FOR LOSS OF INCOME :
45. The petitioners have claimed that they had been doing job/business before the accident. The accident made them bed ridden for months. They could not do their job/business activities. The petitioner Dharamveer has stated that he had been earning R.s 25000/ from his business. He has filed income tax returns Ex.PW1/6 showing his income in the financial year 20082009 as Rs. 3,01,500/. Deducting the income tax the net income is Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 27/36 Karan Singh Vs. National Insurance Co.
28assessed as Rs. 2,40,000/ p.a. Taking a period of 04 months, he remained bedridden the loss of income is calculated as 4 / 12 x 240000 = Rs. 80000/ . I, therefore, award a sum of Rs. 80,000/ to the petitioner Dharamveer towards Loss of Income.
46. The petitioner Sumit Sharma and Puneet Sharma have stated that they had been doing private job and earning Rs. 6000/ p.m. However, owing to the accident they could not earn their livelihood for a long time. In this case the petitioners did not file any proof of income, so the minimum wages as on the date of accident for a "Matriculate" is taken as Rs. 4,382/. Taking a period of 04 months they remained on bed, the loss of income is calculated as 4 x Rs. 4382 = Rs. 17,528/ which is rounded off to Rs. 18,000/. I therefore award a compensation of Rs. 18000/ each to the petitioners Puneet Sharma and Sumit Sharma towards Loss of income.
47. The petitioner Suresh Kumar has stated that he sustained multiple injuries and fracture in his right leg. He used to drive TSR and earn Rs. 7000/ p.m. He filed his driving license Ex.PW1/11. He stated that he remained admitted in the hospital for 15 days and took treatment as an out door patient also. Looking into the injuries and the minimum wages for a skilled person as Rs. 4358/ p.m. as per schedule, taking a period of 4 months, he remained bed Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 28/36 Karan Singh Vs. National Insurance Co.
29ridden, the loss of income is calculated as Rs. 4 x 4,358 = Rs. 17,432/ which is rounded off to Rs. 18000/. I therefore, award a sum of Rs. 18,000/ to the petitioner Suresh Kumar towards loss of income.
48. Thus, the total compensation awarded in favour of the petitioners is assessed as under : Petition No. 228/10 227/10 238/10 936/10 Medical Expenses : Rs.20,000/ 65,000/ 10,000/ 25,000/ Pain & Sufferings & Enjoyment of Life : Rs. 30,000/ 30,000/ 30,000/ 30,000/ Special Diet, Attendant & Conveyance : Rs. 20,000/ 20,000/ 10,000/ 20,000/ Loss of Income : Rs. 80,000/ 18,000/ 18,000/ 18,000/ ============ ======== ======= ====== TOTAL :Rs. 1,50,000/ 1,33,000/ 73,000/ 93,000/ ============ ======== ======= ====== L I A B I L I T Y
49. As regards the liability, the offending vehicle was being driven by respondent no.3, therefore primary liability to compensate the petitioners is that of respondent no.3. As the offending vehicle was owned by respondent no.2, therefore, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the offending vehicle was insured with Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 29/36 Karan Singh Vs. National Insurance Co.
30respondent no.1, therefore, respondent no.1 Insurance Company becomes contractually liable to compensate the petitioners.
R E L I E F In Petition No. 237/10
50. In view of my findings on issues, I award a sum of Rs. 11,90,000/ to the petitioners as compensation with interest @ 9% per annum from the date of filing of the petition till the date of award.
51. Out of this awarded amount, a sum of Rs. 5,00,000/ each be kept in the form of FDRs in the name of petitioners in any nationalized bank, for a period of five years on which they would be entitled to get monthly / quarterly interest, as applicable, however no loan shall be granted to them against the said FDR.
In Petition No. 226/10
52. I award a sum of Rs. 10,76,600/ to the petitioners as compensation with interest @ 9% per annum from the date of filing of the petition till the date of award.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 30/36 Karan Singh Vs. National Insurance Co.
31: RELEASE OF THE AWARDED AMOUNT : In the share of Petitioner No. 1 : (widow of deceased Raj Kumar)
53. A sum of Rs. 6,76,600/ alongwith the proportionate interest thereon, is awarded to petitioner No. 1 being wife of the deceased.
54. Out of this awarded amount, a sum of Rs. 5,00,000/ be deposited in the form of FDR in the name of petitioner no. 1 in the following phased manner :
(a) A sum of Rs. 1,00,000/ for a period of 1 year.
(b) A sum of Rs. 1,00,000/ for a period of 2 years.
(c) A sum of Rs. 1,00,000/ for a period of 3 years.
(d) A sum of Rs. 1,00,000/ for a period of 4 years.
(e) A sum of Rs. 1,00,000/ for a period of 5 years.
In the share of Petitioner No. 2 and 3 : (Daughters of deceased)
55. A sum of Rs. 1,00,000/ each alongwith proportionate interest thereon, is awarded to petitioner No. 2 and 3 being daughters of the deceased. The said amount be kept in FDRs till they attain the age of 18 years.
In the share of Petitioner No. 4 : (Mother of deceased)
56. A sum of Rs. 1,00,000/ alongwith proportionate interest thereon, is awarded to petitioner No. 4 being mother of the deceased.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 31/36 Karan Singh Vs. National Insurance Co.
32In the share of Petitioner No. 5 and 6 : (Sisters of deceased)
57. A sum of Rs. 50,000/ each alongwith proportionate interest thereon, is awarded to petitioner No. 5 and 6 being sisters of the deceased. In Petition no. 228/10, 227/10, 238/10 and 936/10
58. I award a sum of Rs. 1,50,000/ (Petition no. 228/10), Rs. 1,33,000/ (Petition no. 227/10), Rs. 73,000/ (Petition no. 238/10) and Rs. 93,000/ (Petition no. 936/10) to the petitioners as compensation with interest @ 9% per annum from the date of filing of the petition till the realisation of the amount.
59. In terms of the directions given by Hon'ble High Court in case titled " Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.20009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
60. As per orders of Hon'ble High Court in case titled " New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008" as well as in another case titled as " Union of India V/s Nanisiri" bearing M.A.C. Appeal No. 682/2005 dated 13.01.2010, directions were given to the Claims Tribunal Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 32/36 Karan Singh Vs. National Insurance Co.
33to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
61. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, Insurance Company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 45 days from today, failing which respondent No. 3 Insurance Company shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
62. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the manner stated above. It is also ordered that :
(i) The interest on the fixed deposit be paid to the petitioner / claimant by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
(ii) Withdrawal from the aforesaid account shall be permitted to claimant / petitioner after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 33/36 Karan Singh Vs. National Insurance Co.
34
(iii) No cheque book be issued to claimant / petitioner without the permission of this Court.
(iv) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant / petitioner alongwith the photocopy of the FDR .
(v) The original fixed deposit receipts shall be handed over to claimant / petitioner at the end of the fixed deposit period.
(vi) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
(vii)Half yearly statement of account be filed by the Bank in this Court.
(viii)On the request of claimant / petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
(ix) Claimant / petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
63. Copy of this award / judgment be given to the petitioner who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after their having received the notice of the deposit of awarded amount from the Insurance company.
Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 34/36 Karan Singh Vs. National Insurance Co.
35
64. Copy of this Award / Judgment be given to counsel for the Insurance Company for necessary compliance.
65. File be consigned to record room after receipt of the compliance report from the Insurance company.
Announced in the open court on 17th Day of December, 2011 (SANJIV JAIN ) PO : MACT02 : SOUTH DISTT.
SAKET COURTS : NEW DELHI 17.12.2011 Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 35/36 Karan Singh Vs. National Insurance Co.
36Karan Singh Vs. National Insurance Co.
17.12.2011 Present : Ld. counsel for the parties.
Vide common judgment dictated in the petition titled "Puneet Sharma Vs. National Insurance Company & Ors." (Petition No. 238/10) all the six petitions have been disposed off. The main judgment be placed in the file titled "Puneet Sharma Vs. National Insurance Company & Ors." (Petition no. 238/10) and copy be placed in other files.
Copy of the award be given to the parties.
File be consigned to Record Room.
(SANJIV JAIN ) PO : MACT02 : SOUTH DISTT.
SAKET COURTS : NEW DELHI 17.12.2011 Suit No. 237/10, 226/10, 228/10, 227/10, 238/10 and 936/10 36/36