Delhi District Court
Urmila Devi vs . Suresh Suri & Ors. on 11 May, 2018
Urmila Devi vs. Suresh suri & Ors.
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT : SOUTH DISTT. : SAKET COURTS : NEW DELHI
Suit No. : 75285/16
Urmila Devi
W/o Sh. Shiv Kumar
R/o H. No. B522,
Gautam Puri, PhaseII
New Delhi
...... Petitioner
Versus
1. Suresh Suri
S/o Late Krishan Lal Suri
R/o 2189, Ground Floor,
Shora Kothi, Ghanta Ghar,
Delhi - 110 007 (Driver)
2. Mukesh Kumar
R/o 22A, Maidan Garhi,
New Delhi (Owner)
3. Reliance General Insurance Co. Ltd.
Plot No. 60, Okhla Ind. Estate PhaseIII,
Opposite State Bank of India,
New Delhi (Insurer)
......Respondents
Date of Institution : 06.07.2015
Date of reserving of judgment/order : 27.04.2018
Date of pronouncement : 11.05.2018
J U D G M E N T :
1. By this judgment I shall dispose of the Claim Petition filed by the Suit No. : 75285/16 Page No. 1 of 15 Urmila Devi vs. Suresh suri & Ors.
petitioner for the injuries sustained by her in a road accident on 02.12.2014 at about 5.30 PM at Aurobindo Marg near Mandir Wali Gali, Yusuf Sarai, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3S AJ 6114 by respondent no.1, owned by respondent no.2 and insured with respondent no.3. In the present case a Detailed Accident Report has also been filed by SHO, police station Hauz Khas. Same was tagged with the claim petition.
2. No written statement has been filed by respondents no.1 and 2.
3. In its written statement respondent no.3 has stated that the alleged accident has been caused because of sole carelessness and negligence of the petitioner herself while crossing the road without crossing and thereby caused the alleged accident and not because of any wrongful act or negligence on the part of driver of motorcycle bearing no. DL 3S AJ 6114. It denied the averments made by the petitioner in her petition. It however, admitted that the alleged offending vehicle was insured with it vide policy no. 1305542348000974 for the period from 18.06.14 to 17.06.15.
4. For just adjudication of the case following issues were framed vide order dated 06.07.2015 :
1. Whether petitioner Urmila Devi sustained injuries in the road accident on 02.12.2014 at about 5.30 PM at Aurobindo Marg near Mandir Wali Gali, Yusuf Sarai, New Delhi due to rash and negligent driving of vehicle (motorcycle) bearing no. DL 3S AJ 6114 being driven by respondent Suresh Suri, owned by respondent Mukesh Kumar and insured with respondent Suit No. : 75285/16 Page No. 2 of 15 Urmila Devi vs. Suresh suri & Ors.
Reliance General Insurance Company? ... (OPP.)
2. To what amount of compensation, the petitioner is entitled and from whom? ... (OPP.)
3. Relief.
5. Petitioner examined herself as PW1. She tendered in evidence her affidavit Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/7 (colly.).
6. Sh. Sandeep Kalra, employer of the injured was examined as PW2.
7. Dr. Vaibhav Gulati, Senior Resident, Department of Orthopedics, Pt.
Madan Mohan Malviya Hospital was examined as PW3.
8. Respondents did not examine any witness.
I S S U E No. 19. Needless to say that for making someone entitled U/s 166 of the Motor Vehicle Act, negligence of the driver of the offending vehicle needs to be proved and to prove the same the Tribunal need not go into the technicalities 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. It is an admitted legal position that the negligence on part of the driver with respect to use of the vehicle needs to be established and the same is to be established on the principle of Suit No. : 75285/16 Page No. 3 of 15 Urmila Devi vs. Suresh suri & Ors.
preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on the fateful day of 02.12.2014 at about 5.30 AM she alongwith her mother Smt. Omvati got down from the van in front of Yusuf Sarai market, Mandir Wali Gali. She crossed Aurobindo Marg and her mother was standing in between the divider. She further stated that the traffic was going on at that time. She asked her mother to stop there by standing on the edge of the road and in the meantime, she saw that two persons were coming on Hero Honda Passion Pro motorcycle, being driven in a rash and negligent manner and hit her. She sustained injuries. She was taken to AIIMS Trauma Center from where she was shifted to Holy Family Hospital. She further stated that had the driver of the vehicle bearing no. DL 3S AJ 6114 Hero Honda Passion Pro been bit cautious, the accident would have been avoided. She further stated that the said accident has been caused purely due to rash and negligent driving of the offending vehicle by its driver.
During crossexamination she stated that on the day of accident there was no fog at all. She further stated that she had seen it clearly that the offending vehicle was Hero Honda Passion Pro. She admitted that she had not seen the registration number of the offending vehicle. She further stated that there was zebra crossing for crossing the road having red light at the spot of accident. She further stated that the driver of the offending vehicle fell at some distance after hitting her. Police came at the spot. Police recorded her statement. PCR took her to the hospital. She denied the suggestion that the vehicle bearing no.
Suit No. : 75285/16 Page No. 4 of 15Urmila Devi vs. Suresh suri & Ors.
DL 3S AJ 6114 has been falsely implicated with the collusion of respondent no.1 and 2.
During the course of arguments, ld. counsel for the insurance company raised an issue that in her examination in chief the injured stated that she was hit by the motorcycle bearing no. DL 3S AJ 6114 'Hero Honda Passion Pro' whereas in documents like mechanical inspection report and Registration Certificate of the vehicle the motorcycle has been shown as 'CDDawn'. Although the mentioned contradiction is there on record but after considering the whole facts the same can be ignored. The FIR shows that in her first statement, the injured said that the driver of the motorcycle and the pillion rider fell down on the spot and public gathered there and the driver and the pillion rider revealed their names as Suresh and Sanjay. The police made inquiry and filed the charge sheet against Suresh. To clarify the make of the motorcycle the police recorded supplementary statement of the injured on 01.01.2015 in which she clarified that she saw a motorcycle which was Hero Honda and as somebody told her that the motorcycle was Hero Honda Passion Pro, she also said to the police that the motorcycle was Hero Honda Passion Pro. Further, no motorcycle as Hero Honda Passion Pro has come in to the picture, having a different registration and not having insurance so that it can be doubted that as the offending motorcycle had proper insurance the same has been implicated instead of the other motorcycle Hero Honda Passion Pro which was not having any insurance.
In the present case SHO of the police station Hauz Khas has filed a Detailed Accident Report which include FIR, Final Report u/s Suit No. : 75285/16 Page No. 5 of 15 Urmila Devi vs. Suresh suri & Ors.
173 Cr.P.C., site plan, mechanical inspection report of the offending vehicle etc. Perusal of FIR shows that the case was registered on the statement of petitioner herself. As per the site plan the petitioner at the time of accident was standing on the extreme left side of the road where zebra crossing exists. The petitioner also in her cross examination has clarified that there is a zebra crossing at the place where she was standing. Moreover, the charge sheet has been filed against the respondent no.1. No other version of accident has come on record except the one as narrated by the petitioner. Therefore, the petitioner has successfully established on record that she had sustained injuries on 02.12.2014 at about 5.30 PM at Aurobindo Marg near Mandir wali gali, Yusuf Sarai, New Delhi due to rash and negligent driving of vehicle bearing no. DL 3S AJ 6114 by Suresh Suri. Documents filed on record show that the vehicle was owned by respondent no.2 and it was insured with respondent no.3.
I S S U E No. 210. The petitioner has claimed compensation in respect of the injuries sustained by her. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages.
Let me assess the compensation which the claimant is entitled for under different heads MEDICAL EXPENSES :
11. In the present case the injured has filed medical bills of Rs. 1,38,422/.
Therefore, I award Rs.1,38,500/ to the petitoiner towards medical expenses.
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PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
12. As per the discharge summary, the injured was diagnosed with Communuted Fracture of Proximal 1/3rd Right Tibia. ORIF of Communuted Fracture of Right Proximal 1/3rd Tibia by bridge plating and by locking plate was done. Debridement, wound toileting and repair of laceration was also done. She remained hospitalised twice. She has suffered 18% permanent disability in relation to her Right Lower Limb. Looking into the injuries and disability of the petitioner, I award her Rs. 50,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
13. The injuries on the person of the petitioner were such that she must have been advised special diet for her early recovery. The medical record shows that she had visited the hospital as an OPD patient. She further stated that she had taken the help of an attendant for which she had paid her Rs. 9,000/ p.m. However, the petitioner has not filed on record any documentary evidence to show the expenses on special diet, conveyance and attendant charges. Therefore, looking into all the facts, I award Rs. 10,000/ to the petitioner towards special diet and Rs. 10,000/ towards conveyance and Rs. 20,000/ towards attendant charges. Therefore, the total award under this head comes to Rs. 40,000/.
LOSS OF INCOME / FUTURE INCOME :
14. Petitioner stated that the time of accident she was working as maid in Suit No. : 75285/16 Page No. 7 of 15 Urmila Devi vs. Suresh suri & Ors.
the houses and was earning Rs. 15,000/ p.m. She further stated that she is not able to work after the accident and she has suffered permanent disability also. During crossexamination she stated that she was working at the house of Sandeep Kalra at Y24, Green Park and getting Rs. 15,000/ p.m. as salary in cash. She further stated that she has no documentary proof with respect to her salary and employment except the certificate/letter issued by Sh. Sandeep Kalra. She further stated that she is not an income tax assessee.
PW2 has stated that the petitioner had worked with them for 89 years as a housemaid. They used to pay her Rs. 15,000/ p.m. in cash. The salary was being pad by his father Sh. R P Kalra. He is the financial controller of his family. The daily working hours of the petitioner were from 9.00 am to 6.00 pm. He further stated that the petitioner recognised him as the owner of house. They never told the petitioner that the head of their family is Sh. R P Kalra and he is his son. He proved the salary certificate Ex.PW1/3.
During crossexamination he denied the suggestion that they did not pay Rs. 15,000/ p.m. to the petitioner as salary. He further denied that the petitioner was not working with them. He further stated that he know her very well as she had worked with them for 89 years. He further stated that they did not pay salary after the accident as she had not done any work i.e. for the last two years as she is still under treatment. He further stated that they do not have any personal relation with the petitioner. He denied the suggestion that he is deposing at the instance of the petitioner, so that she may be able to take undue advantage of the situation.
Suit No. : 75285/16 Page No. 8 of 15Urmila Devi vs. Suresh suri & Ors.
Petitioner stated that she is not able to work after the accident and she has suffered permanent disability. She further stated that she will not be able to get the job again. Testimony of PW2 i.e. the employer of the petitioner clearly shows that the petitioner was working with them as a housemaid. As per the salary certificate Ex.PW1/3 she was getting Rs. 15,000/ p.m. Considering the fact that the son of employer of the petitioner has been examined and it has come on record that she was working as a cook, it can reasonably be believed that the petitioner must be getting Rs. 15,000/ p.m. for her work being done as a maid or a cook.
PW3 Dr. Vaibhav Gulati has proved the disability certificate Ex.PW3/1. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". As per the election Icard, the age of the petitioner was 30 years as on 01.01.2013. The accident took place on 02.12.2014 therefore, she was 31 years of age at the time of accident. The petitioner has suffered 18% permanent physical impairment in relation to her Right Lower Limb. Employer of the petitioner has certified that she was working as a cook. The disability is such that the petitioner would feel difficulty in standing while cooking. Thus, the work of the petitioner would be affected to a certain extent but not much. Balancing all the facts, to my mind, the functional disability of the petitioner should be taken as 20%. Taking a Suit No. : 75285/16 Page No. 9 of 15 Urmila Devi vs. Suresh suri & Ors.
multiplier of '16', the loss of income/future loss of income comes to Rs. 15,000 x 12 x 16 x 20% = Rs. 5,76,000/. I therefore, award Rs. 5,76,000/ to the petitioner towards loss of income/future loss of Income.
LOSS OF AMENITIES :
15. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue her talents, recreation interest, hobbies and evocations. The injuries would also have an affect on her social life. I therefore, award Rs. 35,000/ to the petitioner towards loss of amenities.
16. The total compensation in favour of petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 1,38,500/
PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 50,000/
SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 40,000/
LOSS OF INCOME/FUTURE LOSS OF INCOME : Rs. 5,76,000/
LOSS OF AMENITIES : Rs. 35,000/
===========
TOTAL : Rs. 8,39,500/
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L I A B I L I T Y
17. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner remains with respondent no. 1. Since the vehicle was owned by respondent no.2, so, he is vicariously liable to compensate the petitioner. It is an admitted position on record that the vehicle was insured with respondent no.3, therefore, Suit No. : 75285/16 Page No. 10 of 15 Urmila Devi vs. Suresh suri & Ors.
respondent no.3 is contractually liable to compensate the petitioner.
R E L I E F
18. In view of my findings, I award Rs. 8,39,500/ (Rs. Eight Lakh Thirty Nine Thousand Five Hundred only) to the petitioner as compensation alongwith interest @9% per annum from the date of filing the DAR till its realisation (except for the period from 02.09.2015 till 08.08.2017).
Petitioner was examined by the Tribunal on 27.04.2018 in terms of order passed by the Hon'ble High Court in FAO 842/2003 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors.
Petitioner has stated that if the award is passed in her favour, at least Rs. 6.0 lakh be released to her as she is under debt of Rs. 7.0 lakh and rest of the amount may be kept in the form of fixed deposit.
Out of the awarded amount, an amount of Rs. 7,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs. 1,00,000/ for a period of 01 year.
2. Rs. 1,00,000/ for a period of 02 years.
3. Rs. 1,00,000/ for a period of 03 years.
4. Rs. 1,00,000/ for a period of 04 years.
5. Rs. 1,00,000/ for a period of 05 years.
6. Rs. 1,00,000/ for a period of 06 years.
7. Rs. 1,00,000/ for a period of 07 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
19. In terms of the directions given by Hon'ble High Court in case titled Suit No. : 75285/16 Page No. 11 of 15 Urmila Devi vs. Suresh suri & Ors.
"Rajesh Tyagi Vs. Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank/ State Bank of India has agreed to open a Special Fixed Deposit Account for the victims of road accidents.
20. 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 to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimant.
21. 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, respondent no.3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner.
within a period of 30 days from today, failing which respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
22. The respondent no.3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the Bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
Suit No. : 75285/16 Page No. 12 of 15Urmila Devi vs. Suresh suri & Ors.
23. 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 following manner :
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant 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.
10. The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. Following the directions of Hon'ble High Court in para no. 17 of the order dated 09.03.2018 and para no.8 of the order dated 01.05.2018 passed in FAO 842/2003 and CM Appl. 32859/2017, 4112541127/2017 titled as Rajesh Tyagi & Ors. vs. Jaibir Singh Suit No. : 75285/16 Page No. 13 of 15 Urmila Devi vs. Suresh suri & Ors.
& Ors., the Manager of SBI, District Court Saket branch is directed not to release more than 10% of the awarded amount in this branch. It is clarified that all the amount except 10% as mentioned above including the maturity amount of FDRs shall be credited to the personal account of the petitioner through RTGS or any other appropriate electronic mode only, the details of which has been given by him to the Tribunal. The petitioner shall produce the same details/passbook of his bank to the Manager, SBI Saket Court branch.
DIRECTIONS FOR THE RESPONDENT No. 324. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
25. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
26. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
27. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice Suit No. : 75285/16 Page No. 14 of 15 Urmila Devi vs. Suresh suri & Ors.
of the deposit of awarded amount by the respondent no.3.
28. Copy of this Award / Judgment be given to the parties for compliance.
29. The case is now fixed for compliance by the respondent no.3 for 02.07.2018.
Announced in the Open Court
on 11th day of May, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts New Delhi
Suit No. : 75285/16 Page No. 15 of 15